11-04-2020 Momentum Trail Concepts Service Agreement
Avon Professional Service Agreement - Momentum Trail Concepts
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2020 Professional
Service Agreement
West Avon Trail Reconstruction
Project/Services Name:
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) dated as of ________________, 2020 is
entered into by and between Momentum Trail Concepts, a limited liability company of the State of
Colorado, whose business address is PO Box 3368, Eagle, Colorado 81631 (“Contractor”) and the Town
of Avon, Colorado, a home rule municipality of the State of Colorado (“Town” and, together with the
Contractor, “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 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, attached
hereto and incorporated herein (“Services”). For purposes of this Agreement, “Work Product” shall
consist of deliverables and/or product to be created, provided or otherwise tendered to the Town as
described in the Services.
1.2 Changes to Services. At any time 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 Avon Town
Council (“Town Council”).
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 Contractor or the Contractor’s employees, sub -
consultants, contractors, agents, or representatives, including coverage or benefits related but not limited
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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 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.
1.6 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 its employees, agents
and subcontractors to comply, with applicable safety rules and security requirements.
1.7 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.
1.8 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 n ot be required to pay salary, or any other
costs associated with dismissed personnel effective upon Contractor’s receipt of notice to dismiss from
Town.
1.9 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.
1.10 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.
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1.11 Colorado Open Records Act. The parties understand that all material provided or produced under
this Agreement may be subject to the Colorado Open Records Act, § 24 -72-201, et seq., C.R.S. In the
event of the filing of a lawsuit to compel such disclosure, the Town shall inform the Contract and will tender
all such material to the court for judicial determination of the issue of disclosure and the Contractor agrees
to intervene in such lawsuit to protect and assert its claims of privilege and against disclosure of such
material or waive the same
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.
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
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 Fifty Thousand Three Hundred Twenty Dollars ($50,320.00).
B. Reimbursable Expenses. The following shall be considered “reimbursable expenses” for
purposes of this Agreement and may be billed to the Town without administrative mark-up but which
must be accounted for by the Contractor and proof of payment shall be provided by the Contractor with
the Contractor’s monthly invoices:
Vehicle Mileage (billed at not more than the prevailing per mile charge permitted by t he Internal
Revenue Service as a deductible business expense)
Printing and Photocopying Related to the Services
Charges incidental to securing needed information (e.g., charges imposed to obtain recorded
documents)
Postage and Delivery Services
Equipment rental
Fuel
Lodging
Per diem - 3 team members x 28 days
Mobilization
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 Agr eement 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.
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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.
2.3 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. Ma il,
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 the Services in a timely and professional manner.
3.4 The Contractor shall promptly comply with any written Town request from the Town or any of the
Town’s 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.
3.6 The Contractor shall be responsible at the Contractor’s expense for obtaining, and ma intaining 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
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4.1 Term. The Parties understand and acknowledge that Avon 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 Avon are expressly
dependent and conditioned upon the continuing availability of funds beyond the t erm of the Avon’s current
fiscal period ending upon the next succeeding December 31. Financial obligations of Avon 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.
4.2 Continuing Services Required. The Contractor shall perform the Service s 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.
4.3 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 ter mination; 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.
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 termina ted 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.
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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); (2) for the submission of an invoice
for Services performed prior to the date of suspension in accordance with this Agreement or (3) as required
by law.
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 thirty (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 purs uant 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.
4.7 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 persons identified in Section 9.17
herein and at the addresses provided therein 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
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 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 , if any, 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 Two Million Dollars ($2,000,000.00) 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.
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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 automot ive 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.
5.2 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 Required Insurance and any other insurance carried by Contractor (“Contractor
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 Required Insurance and Contractor 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 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
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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 applicable 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 Tow n 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
5.1 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.
5.2 Obligations of Contractor’s Personnel and Subcontractors. Contractor warrants it has
enforceable written agreements with all of its personnel and subcontra ctors 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 cas e may be, upon terms and conditions no
less restrictive than are contained in this Section 6.0 OWNERSHIP OF DOCUMENTS, not to use or
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.
5.3 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.
5.4 Town Furnished Information. Title to all materials and all documentation furnished by the Town
to Contractor will remain in the Town. Contractor will deliver to the Town any all Work Product and property,
including copies thereof on whatever media rendered, upon the first to occur of:
A. the Town’s written request; or
B. completion of the Services under this Agreement; or
C. termination of this Agreement.
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5.5 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,
the Avon Town Code of Ethics, as amended or the Town’s 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.
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 s hall 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 be half 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.
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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; a nd 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 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.
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 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.
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 e xpress written consent of the
Town Council. 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. No assignment shall release the Applicant from performance of
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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.
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 alie n
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 provis ion 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 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.
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9.16 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 caus ed 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.
9.17 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. Written notice may
also be provided by electronic mail which shall be deemed delivered when receipt is acknowledged by
reply of the recipient.
If to the Town: If to the Contractor:
Eric Heil, Town Manager
Town of Avon
100 Mikaela Way
P.O. Box 975
Avon, Colorado 81620
eheil@avon.org
Attention:
Matt Thompson
Momentum Trail Concepts, LLC
PO Box 3368
Eagle, Colorado 81631
matt@momentumtrail.com
With Copy to:
Town Attorney
100 Mikaela Way
P.O. Box 975
Avon, Colorado 81620
townattorney@avon.org
Matt Pielsticker
Avon Professional Service Agreement - Momentum Trail Concepts
Page 13 of 15
100 Mikaela Way
P.O. Box 975
Avon, Colorado 81620
mpielsticker@avon.org
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]
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THIS AGREEMENT is executed and made effective as provided above.
TOWN OF AVON, COLORADO
By: ______________________________ ATTEST: ________________________
Eric Heil Brenda Torres, Town Clerk
CONTRACTOR:
By:
Name: Matt Thompson
Position:
THIS AGREEMENT is executed and made effective as provided above,
TOWN OF AVON, COLORADO
Digitally signed by Eric Heil
Eric Heil .—T.—
N cn=Eric Heil, o=Town of Avon,
u=Town Manager,
email=eric@avon.org, c=US
By: Date: 2020.11.04 14:50:35 -07'00'
Eric Heil
ATTEST: J I/Itf Ul/l/ I [) I
Brenda Torres, Town Clerk
CONTRACTOR:
By:
Name: Matt Thompson
Position:
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EXHIBIT A
Project/Services Name: West Avon Trail Reconstruction and Reclamation
Contractor shall perform the trail reroute and reclamation services outlined in the Town of Avon’s
published RFP from October 12, 2020, consisting of approximately 4,600 feet of new trail
construction and 1,320 feet of trail decommissioning (the “Work”). New trail construction will be
performed on existing flagline in the field and according to the maps included in the RFP.
Momentum Trail Concepts will perform these services utilizing both a mini-excavator and hand
tools, consistent with modern trail building techniques. Trails constructed for this project will
average between 24-36 inches in width. Soil and vegetation will be cleared from the trail, exposing
mineral soil underneath. Except where noted, tread will require a minimal 3% outslope to facilitate
drainage, along with the wide dispersal of removed soil onto downhill side. Final preparation of trail
will involve the smoothing and/or compaction of exposed mineral soil to a reasonable standard.
Exposed roots and stone need not be removed. Further stone may be used to denote trail line and
corral users onto the correct trail line. Where necessary, constructed trail will b e used in
conjunction with full bench construction or other recognized trail construction techniques
dependent on slope and ground conditions.
Contractor shall conduct the Work subject to the following minimization and avoidance measures
prior to and during any trail construction and trail decommissioning activities:
1. Adhere to Best Practices, Maintenance, Trail Closures, Decommissioning of Existing Trails, and
Restoration techniques as identified in the WAP Management Plan.
2. Prior to trail construction, perform an in-field briefing with construction crews, including a plant ID
primer, review of known/flagged plant locations, and recommended avoidance techniques during
construction activities.
3. Prior to trail construction, assess all existing penstemon locations along each re -route, flag
additional plants if found, and modify or refine re-routes as needed to avoid the maximum number
of individual penstemon plants to the greatest extent feasible.
4. Prior to trail construction, visually inspect any pinyon or juniper trees potentially requiring
treatment (de-limbing, etc.) for nesting birds (i.e. the federally-sensitive pinyon jay); the pinyon jay
primarily breeds from February 15 to July 15 but can also breed through November if conditions
are suitable); pinyon jays were observed on the Property during penstemon surveys in September
and the open, loosely scattered pinyon-juniper woodlands provide the colony-nesting species
preferred breeding habitat in Colorado.
5. Since P. harringtonii can only be confirmed from other penstemon lookalikes on the Property
during the flowering period (June – July), all occurrence data should be ground trothed in June-July
to confirm target species identification, especially prior to using this survey’s spatial data for any
other planning purposes.
6. Remove all flagging located along Re-route 9 (Singletree Switchbacks), as this alignment occurs
on private lands not owned or managed by the Town or Eagle Valley Land Trust.
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Contractor shall also conduct all work subject to all the conditions and guidance set forth in letter
provided by the Eagle Valley Land Trust dated October 27, 2020, which letter is attached hereto as
Addendum A and incorporated herein.
Budget/Pricing - Momentum Trail Concepts bids this work at $8/linear foot of trail, or $36,800;
with no additional charges for grade reversal, switchback, berm, or feature construction. Trail
decommissioning cost is $1/ft, or $1,320. Additional costs include:
Equipment rental - $3,500
Fuel - $500
Lodging - $3,500
Perdiem - 3 team members x 28 days x $50/day = $4,200
Mobilization - $500
Total bid for this project - $50,320
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ADDENDUM A