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08-31-2020 Western Biology Service AgreementIndependent Contractor Avon Service Agreement For West Avon Preserve Trail Re -Route Survey This Independent Contractor Service Agreement ("Agreement") dated as oft jZC) , is between the Town of Avon, a Colorado home rule community ("Town") and Western Biology, LLC ("Contractor"). 1. Services: Contractor agrees to provide services ("Services") as described in the proposal ("Proposal") attached to this Agreement. The cost for the Services shall not exceed $3,500.00 without prior written authorization from the Town. 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 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. 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: 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 Independent Contractor Agreement — West Avon Preserve Trail Re -Route Survey Page 1 of 4 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. 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 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 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. Independent Contractor Agreement — West Avon Preserve Trail Re -Route Survey Page 2 of 4 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 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 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. 12. 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 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. Independent Contractor Agreement — West Avon Preserve Trail Re -Route Survey Page 3 of 4 AGREEMENT READ, UNDERSTOOD AND APPROVED: TOWN OF AVON BY: Matt Pielsticker, Plan 'n Director CONTRACTOR BY: Adam Petry, Senior Biologist/Owner Western Biology, LLC Independent Contractor Agreement — West Avon Preserve Trail Re -Route Survey Page 4 of 4 2020 HARRINGTON'S PENSTEMON SURVEY PROPOSAL ` ' ..t--..t_Y ;-'^�:lart%@i-�%?' _. _s";�f� •S •v • �,, r4�• ii. =`r` + , 1� ;�Y�. - 'f [��i Y �.•. ami nr f' r F �� A' �gV- < �`"'P�a ski{ + � '•. ,,� 'i,.;• •. 3*" „' Sii' ., ��'"�' t t ..fir s .� ... _ �« .� ...if -�A• ti R r�1`r �� •:,f: ; �-a.�' . i•: `:t�"( ..f �•" _ as i•�r.,'�'� f ' ` ',��.� �_gt�.,i Y�' 'buy ;Qr{�iaWr'i`%^i {tf'•,, i�':.� '' cE+.:t" r" ;� �.j . � _ :;Y�_ .: • r �-e:.r!. y �-,�'t�' � f(� Y`L s �',�t �'t �^ �+e'��''S�5�� f. • iY; xr e.:y�": %r t''"� � • f +r'7k t � r F• i +?\ 7�� i . r r «S'•?, �, ,*;y:Fi7�. j . � s s�' •aC �4ts�'. r r . � rf � t i;� i "- � r}�'�rct'. � ° `s ;.; -sK f� jt{•. � i 5� �.* S t1,; � s.. ie.,,}}..SC�7 �. ` ': { t Z t t+t'gt= ti�-I►•..� ,tet, `'.. � J. .�r - 1- �a�: ti.w� - f, t � J � J�5,Y'` ,r"� ti s k •7 � �N'-�.�.y�,� ;If+ - st ., i��'� t. 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CQF1 WEST AVON PRESERVE PROPOSED TRAIL RE-ROUTES Western Biology, LLC P.O. Box 482 Hotchkiss CO 81419 United States Town of Avon Matt Pielsticker 100 Mikaela Way P.O. Box 975 Avon Colorado 81620 Estimate # Estimate Date Estimate Total (USD) ►iWESTERNBIOLOGY 0074 August 25, 2020 $3,500.00 Task Time Entry Notes Rate Hours Line Total Coordination Town of Avon, EVLT, WMTA (As Needed) 80.00 3 240.00 Survey Design Site/Data Review, Hist. Records, Protocol 80.00 2 160.00 Survey Planning GPS/Map Review/File Prep/Scheduling 80.00 1 80.00 Field Surveys Task 1, Survey 1 80.00 15 1,200.00 Data Management GPX/XLS/SHP Packaging/PDF Data Forms 80.00 4 320.00 Data Transmission Data Submittal (COB September 14) 80.00 4 320.00 Mapping Data Submittal (COB September 14) 80.00 4 320.00 Technical Writing Survey Report Memo Draft (September 21) 80.00 5 400.00 Technical Writing Survey Report Memo Final (TBD) 80.00 3 240.00 Item Description Unit Cost Quantity Line Total Mileage 2020 IRS Mileage Rates 0.575 270 155.25 Electronics iPhone, Sony RX10 IV, Garmin GPS, Garmin InReach, Laptop, 25.00 1 25.00 Batteries/Day Miscellaneous Pinflags, Batteries, Map Printing 39.75 1 39.75 Truck Wash Pre -Arrival Noxious Weed Removal 0.00 1 0.00 Estimate Total (USD) Terms 2020 Harrington's Penstemon Surveys Eleven Trail Re -Route Alignments West Avon Preserve, Avon, Colorado Town of Avon and Eagle Valley Land Trust $3,500.00 Assumptions -Task 1: Harrington's Penstemon Surveys (non -flowering) -Survey Alignments: 11 Trail Re -Routes (already flagged) -Survey Distance: —6,583 Linear Feet of Proposed Trail -Survey Area Buffer: 50 feet each side of Trail Centerline -Transect Spacing: 3-5 meters (-10-15 feet) -Unless otherwise identified, it is assumed that, due to fall survey timing (i.e. post -flowering phenology and dried flower stalks), all penstemon species detected will be recorded as Penstemon harringtonii; P. osterhoutii and P. watsonii are also known to occur on the West Avon Preserve -Survey Data: Collected using a Garmin Handheld Etrex 10; All individual PEHA will be waypointed and labeled with unique ID; survey tracks will also be logged; occurrence polygons will be digitized and provided to Town of Avon -Western Biology will not perform any full-time on-site monitoring, a pre -construction kickoff, or pre - construction flagging of known occurrences under this scope -Pinflags will be removed upon survey completion unless otherwise directed Survey Methods Meandering pedestrian transect surveys for Penstemon harringtonii will be conducted in August -September 2020. Surveys will be completed during the species non -flowering period. To account for potential reduced detectability rates during non -flowering, survey transect widths will be narrowed (compared to flowering season transect widths) to attempt to improve species detectability. Transects will be surveyed by a team of two biologists walking approximately 3 meters (10-15 feet) apart, parallel to and offset from the proposed trail centerline(s). Four transects with 3 -meter (10-15 foot) interval spacing will be completed to 50 feet on each side of each proposed trail centerline(s). In areas where Penstemon harringtonii is detected, survey transect widths will be narrowed to 1-2 meters (3-6 feet) or less. Following species detection, surveyors will place a pinflag approximately one foot north of each plant occurrence and thoroughly survey the vicinity for additional plants until surveyors achieved adequate coverage and saturation and no additional PEHA are detected. Data will then be recorded for each occurrence polygon; the polygon peremiter will be digitized and labeled with a unique naming convention. Deliverables -Western Biology will provide hard data (KMZ, GPX, and attibuted shapefile(s) of occurrence polygons, PDF data forms, photos) on a private file share folder as well as a survey results summary email no later than end of day Monday, September 14 -Western Biology will provide a survey report memo draft for review (including sections on project location, project purpose, survey methods, survey results, avoidance/minimization recommendations, as well as photo pages and maps), no later than end of day Monday, September 21 -Final survey report will be submitted following receipt of proposed edits and report draft recommendations Administrative -Costs and Expenses Billed on a Time -and -Materials Basis Not to Exceed $3,500.00 -All Time Recorded in Quarter Hour Increments Rounded to the Nearest Interval -Invoice(s) sent at the end of each calendar month unless otherwise specified -Please contact Adam Petry at 970.462.8702 or petry@westernbiology.com with questions. Thanks! 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