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06-09-2020 Service Agreement Kaleidoscope Productions AvonLIVE!Independent Contractor Agreement Form – April 2014 Page 1 of 5 Independent Contractor Service Agreement For AvonLIVE! Equipment Rental This Independent Contractor Service Agreement (“Agreement”) dated as of June 9, 2020 is between the Town of Avon, a Colorado home rule community (“Town”) and Kaleidoscope Productions (“Contractor”). 1. Services: Contractor agrees to provide services (“Services”) as described in the proposal (“Proposal”) attached to this Agreement. To the extent the provisions of this Agreement conflict with the Proposal, the terms of this Agreement shall control. Contractor shall provide and complete the Services in a workmanlike fashion. Contractor hereby warrants that it has the work force, 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. Commercial Liability Insurance: At all times while the Contractor is rendering Services, Contractor shall maintain commercial general liability coverage providing bodily injury and property damage coverage with a combined single limit of at least $1,000,000 and a deductible of not more than $1,000. Such insurance shall provide that it may not be cancelled without thirty (30) days prior written notice to the Town. Prior to commencement of the Services, Contractor shall cause Town to be named as an additional insured and shall provide Town with evidence, acceptable to Town, that the required insurance is in full force and effect. The Contractor’s failure to obtain and continuously maintain policies of insurance in accordance with this Section 3 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. 4. Payment: Except as set forth in Exhibit A, payment for Services shall be due only after the Services are completed to the Town’s satisfaction 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. $2500Deductible Independent Contractor Agreement Form – April 2014 Page 2 of 5 5. 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 5., “Department” means the Colorado Department of Labor and Employment. 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 e ffect. 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 estab lished in C.R.S. Section 8-17.5-102(5). F. If Contractor violates any of the provisions of this Section 5, the 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. 6. 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 Independent Contractor Agreement Form – April 2014 Page 3 of 5 this Agreement immediately upon delivery of written notice if Contractor fails to provide the Services in accordance with the terms of this Agreement. 7. No Waiver of Governmental Immunity: Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 8. Affirmative Action: Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 9. 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. 10. 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. 11. Indemnity: To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless Town, its members, affiliates, officers, directors, partners, employees, and agents from and against all claims, damages, losses and expenses, including but not limited to reasonable attorney’s fees, arising out of the performance of the Services, provided that any such claim, damage, loss or expense is caused by any negligent act or omission of Contractor, anyone directly or indirectly employe d by Contractor or anyone for whose acts Contractor may be liable, except to the extent any portion is caused in part by a party indemnified hereunder. 12. Force Majeure: Neither party shall be liable for any costs or damages due to delay or nonperformance under this Agreement arising out of any cause or event beyond such party’s control, including, but not limited to, cessation of Services hereunder or any damages resulting therefrom to the other party as a result of work stoppage, war, pandemic, public health order or other government action, natural disaster or act of nature or transportation disruption. 13. 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 the rule providing ambiguities in a contract are to be construed against the drafting party shall not apply Independent Contractor Agreement Form – April 2014 Page 4 of 5 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 CONTRACTOR BY:________________________________ BY:____________________________________ Danita Dempsey, CASE Manager Stephen Ridgway - Owner Independent Contractor Agreement Form – April 2014 Page 5 of 5 Exhibit A Services: Contractor shall provide audio and lighting equipment for AvonLIVE! Concerts to be held June 24, 2020, July 8, 2020, July 15, 2020, July 22, 2020, July 29, 2020, August 5, 2020, August 12, 2020, August 19, 2020 and August 26, 2020. Fee: The total fee for the Services shall be $12,888.00. The Town shall pay Contractor a 50% deposit in the amount of $6,444.00 upon execution of this Agreement. The remaining $6,444.00 shall be paid prior to September 19, 2020. Damage and Security: DAMAGE & SECURITY. Customer shall be responsible for all equipment that is damaged, lost or stolen (whether by use, misuse, accident or neglect), unless caused by Contractor negligence. In addition to amounts due to Contractor in connection with this proposal, Customer agrees to pay Contractor upon demand for all amounts incurred by Contractor on account of lost, damaged and stolen equipment, based upon repair costs for reparable equipment or full replacement cost for lost or irreparable equipment. In addition, Customer shall be responsible for rental fees while equipment is being repaired and/or replaced, as the case may be.