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12-05-2019 Independent Contractor for Design and Build Event Bar Service AgreementIndependent Contractor Avon Service Agreement For Design and Build Event Bar Services This Independent Contractor Service Agreement ("Agreement") dated as of December 5, 2019, is between the Town of Avon, a Colorado home rule community ("Town") and Mr. Michael Welle, ("Contractor") located at 22040 Whitewood Drive W, Steamboat Springs, Colorado 80487. 1. Services: Contractor agrees to provide services as described in Exhibit A — Scope of Services (the "Services") attached to this Agreement. Contractor shall provide and complete the Services in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances in Colorado. Contractor hereby warrants that it has the workforce, training, experience and ability necessary to properly complete the Services in a timely fashion. Contractor will comply, and cause all of its employees, agents and subcontractors to comply, with applicable safety rules and security requirements while performing the Services. 2. Independent Contractor: The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this Agreement to have entered into any partnership, joint venture, employer/employee or other relationship with the Town other than as a contracting party and independent contractor. The Town shall not be obligated to secure, and shall not provide, any insurance coverage or employment benefits of any kind or type to or for the Contractor or the Contractor's employees, sub - consultants, contractors, agents, or representatives, including coverage or benefits related but not limited to: local, state, or federal income or other tax contributions; insurance contributions (e.g., FICA); workers' compensation; disability, injury, or health; professional liability insurance, errors and omissions insurance; or retirement account contributions. 3. Insurance: 3.1. Minimum Amounts. The Contractor shall obtain and shall continuously maintain during the term of this Agreement insurance of the kind and in the minimum amounts specified in this Section 3.1. 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 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. Independent Contractor Agreement — Design and Build Event Bar Services 2019 Page 1 of 5 3.2. Additional Requirements for All Policies. In addition to specific requirements imposed on insurance by this Section 3. INSURANCE and its subsections, insurance shall conform to all of the following: A. 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. The Contractor shall be solely responsible for any deductible losses. C. For Required Insurance, no policy of insurance shall contain any exclusion for bodily injury or property damage arising from completed operations. D. For Required Insurance, every policy of insurance shall provide that the Town will receive notice no less than thirty (30) days prior to any cancellation, termination, or a material change in such policy. 3.3. Failure to Obtain or Maintain Insurance. The Contractor's failure to obtain and continuously maintain policies of insurance in accordance with this Section 3. INSURANCE and its subsections shall not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other obligations of the Contractor arising from performance or non-performance of this Agreement. Failure on the part of the Contractor to obtain and to continuously maintain policies providing the required coverage, conditions, restrictions, notices, and minimum limits shall constitute a material breach of this Agreement upon which the Town may immediately terminate this Agreement, or, at its discretion, the Town may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the Town shall be repaid by Contractor to the Town immediately upon demand by the Town, or at the Town's sole discretion, the Town may offset the cost of the premiums against any monies due to the Contractor from the Town pursuant to this Agreement. 3.4. 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 3. INSURANCE and its subsections shall be indicated on each certificate of insurance. Certificates of insurance shall reference the Project Name as identified on the first page of this Agreement. The Town may request and the Contractor shall provide within three (3) business days of such request a current certified copy of any policy of Required Insurance and any endorsement of such policy. The Town may, at its election, withhold payment for Services until the requested insurance policies are received and found to be in accordance with the Agreement. 4. Payment: Payment for Services shall be $2,000 for design phase and $2,000 upon delivery of event bars; and, after Contractor has submitted an invoice for the amount due complete with the Contractor's taxpayer identification number or social security number. Town shall pay Contractor within thirty (30) days after an invoice in proper form is submitted to Town. 5. Use of Contractors Name: The Contractor waives any right to prevent its name from being used in connection with the Services. 6. Illegal Aliens: This Agreement is subject to the provisions of the Illegal Aliens -Public Contracts for Services Act found at C.R.S. Section 8-17.5-101 et seq. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and that Contractor will participate in either the E -Verify Program or Department Program in order to confirm the eligibility of all employees who are newly hired for employment to perform work under this Agreement. As used in this Section 6., "Department" means the Colorado Department of Labor and Employment. Independent Contractor Agreement — Design and Build Event Bar Services 2019 Page 2 of 5 A. Specifically, Contractor shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this Agreement; or (ii) Enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. B. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement through participation in either the E -Verify Program or Department Program. C. Contractor shall use either the E -Verify Program or Department Program to undertake pre- employment screening of job applicants while this Agreement is in effect. D. If Contractor obtains actual knowledge that any of its subcontractors performing work under this Agreement knowingly employs or contracts with an illegal alien, Contractor shall: (i) notify the subcontractor and Town, within three (3) days of discovery of such fact, that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) terminate the contract with the subcontractor if, within three (3) days of receiving the notice required by subpart D.(i) above, the subcontractor does not stop employing or contracting with the illegal alien; except that Contractor need not terminate the contract with the subcontractor if, during such three (3) days, the subcontractor provides information establishing that the subcontractor has not knowingly employed or contracted with an illegal alien. E. Contractor shall comply with any reasonable request by the Department made in the course of an investigation that the Department is undertaking pursuant to the authority established in C.R.S. Section 8-17.5-102(5). F. If Contractor violates any of the provisions of this Section 6., Town shall have the right to terminate the Agreement for breach of contract and, in such case, Contractor shall be liable to Town for all actual and consequential damages incurred by Town as a result of such breach and the termination of this Agreement. G. Town will notify the Office of the Secretary of State if Contractor violates this provision of this Agreement and the Town terminates this Agreement for such breach. 7. Work Product: All work product prepared under this Agreement, including photographs, negatives, video footage, images, renderings, and other related materials created or produced by Contractor in whatever form or medium, electronic or otherwise, or any other copyrightable works, ideas, discoveries, products or other information ("Work Product") shall become the exclusive property of the Town. Contractor acknowledges and agrees that the Work Product and all legal title and rights therein are the sole and exclusive property of the Town, and the Town shall have all of the right, title and interest in the Work Product in perpetuity worldwide, including all works based upon, derived from, or incorporating the Work Product, and any income, royalties, damages and/or payments now or hereafter due or payable with respect to the Work Product. 8. Town Unilateral Termination: Town may terminate this Agreement without cause upon delivery of written notice to the Contractor at least ten (10) days prior to the effective date of termination or may terminate this Agreement immediately upon delivery of written notice if Contractor fails to provide the Services in accordance with the terms of this Agreement. Independent Contractor Agreement — Design and Build Event Bar Services 2019 Page 3 of 5 9. 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. 10. 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. 11. 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. 12. Limitation of Damages: The parties agree that Contractor's remedies for any claims asserted against the Town shall be limited to proven direct damages in an amount not to exceed payment amounts for Services due under the Agreement and that Town shall not be liable for indirect, incidental, special, consequential or punitive damages, including but not limited to lost profits. 13. Indemnity: To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless Town, its members, affiliates, officers, directors, partners, employees, and agents from and against all claims, damages, losses and expenses, including but not limited to reasonable attorney's fees, arising out of the performance of the Services, provided that any such claim, damage, loss or expense is caused by any negligent act or omission of Contractor, anyone directly or indirectly employed by Contractor or anyone for whose acts Contractor may be liable, except to the extent any portion is caused in part by a party indemnified hereunder. 14. Article X, Section 20 (TABOR): The parties understand and acknowledge that the Town is subject to Article X, Section 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 The Town, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 15. 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 Independent Contractor Agreement — Design and Build Event Bar Services 2019 Page 4 of 5 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. AGREEMENT READ, UNDERSTOOD AND APPROVED: TOWN OF AVON BY: Eric H ' , own Ma ager CONTRACTOR Michael R Welle, Contractor Independent Contractor Agreement — Design and Build Event Bar Services 2019 Page 5 of 5 Exhibit A Scope of Work: 1. Design and build two (2) bars for use during special events 2. Design and build shall incorporate Hahnewald barn wood and name 3. Design and build shall incorporate Town of Avon brand elements and/or logo 4. Bar shall be approximately 9' 10.5" in length and mobile to allow for rolling on grass, concrete, asphalt, etc. surfaces 5. Provide renderings of for Town review, edit and approval prior to build 6. Complete bars delivered no later than April 1, 2020 7. Additional materials if needed shall be pre -approved in writing (such as live edge wood slab) Independent Contractor Agreement — Design and Build Event Bar Services 2019 Page 6 of 5