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12-23-2020 Walking Mountains Science Center 501c3 Service Agreement
Independent Contractor Agreement, Town of Avon Community Energy Efficiency Program - 2021 Page 1 of 7 2021 Independent Contractor Service Agreement for Town of Avon Community Energy Efficiency Program This Independent Contractor Service Agreement (“Agreement”) dated as of December 23, 2020, is between the Town of Avon, a Colorado home rule community (“Town”) and Walking Mountains Science Center, a community-based nonprofit 501c3 organization of the State of Colorado (“Contractor” and, together with the Town, “Parties”). 1. Services: Contractor agrees to provide services (“Services”) as described in the proposal (“Proposal”) attached hereto and incorporated herein as Exhibit A. 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 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 (defined below) 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 One Million Dollars ($1,000,000.00) aggregate. Independent Contractor Agreement, Town of Avon Community Energy Efficiency Program - 2021 Page 2 of 7 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. 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. For both Required Insurance and 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 Contractor Insurance and Required Insurance, the Contractor shall be solely responsible for any deductible losses. C. For Required Insurance, no policy of insurance shall contain any exclusion for bodily injury or property damage arising from completed operations. D. For Required Insurance, every policy of insurance shall provide that the Town will receive notice no less than thirty (30) days prior to any cancellation, termination, or a material change in such policy. 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 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 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 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, Town of Avon Community Energy Efficiency Program - 2021 Page 3 of 7 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.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 subcontractors to be involved in performing the Services that: A. assign to Contractor ownership of all patents, copyrights and other proprietary rights created in the course of their employment or engagement; and B. obligate such personnel or subcontractors, as the case may be, upon terms and conditions no less restrictive than are contained in this Section 5 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 5 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. The Contractor will deliver to the Town and 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. 5.5 The Contractor waives any right to prevent its name from being used in connection with the Services. 6.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- Independent Contractor Agreement, Town of Avon Community Energy Efficiency Program - 2021 Page 4 of 7 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 alien within three (3) days of receiving the notice regarding Contractor’s actual knowledge. The Contractor shall not terminate the subcontract if, during such three days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. The Contractor is required to comply with any reasonable request made by the Department of Labor and Employment made in the course of an investigation undertaken to determine compliance with this provision and applicable state law. If the Contractor violates this provision, the Town may terminate this Agreement, and the Contractor may be liable for actual and/or consequential damages incurred by the Town, notwithstanding any limitation on such damages provided by such Agreement. 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.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. 10.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. 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. Independent Contractor Agreement, Town of Avon Community Energy Efficiency Program - 2021 Page 5 of 7 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. AGREEMENT READ, UNDERSTOOD AND APPROVED: TOWN OF AVON CONTRACTOR BY:________________________________ BY:____________________________________ Ineke de Jong, General Government Manager Nikki Maline, Energy Programs Director Town of Avon Walking Mountains Science Center idejong@avon.org nikkim@walkingmountains.org office: 970.748.4013 office: 970-827-9725 x135 cell: 970-445-8004 318 Walking Mountains Lane | PO Box 9469 Avon CO 81620 Page 1 of 2 Town of Avon Community Energy Efficiency Program – 2021 proposal EXHIBIT A: Town of Avon Community Energy Efficiency Program Goals & Scope of Work for 2021 11/23/2020 CONTACT INFORMATION Nikki Maline, Energy Programs Director Walking Mountains Science Center P.O. Box 9469, Avon, CO 81620 Office Phone: 970-827-9725 x135 Website: www.walkingmountains.org/energy INTRODUCTION The intent of this proposal is to request funding from the Town of Avon’s Exterior Energy Offset Program (EEOP) to contribute towards the completion of energy efficiency work within the Town of Avon in 2021. ORGANIZATION PROFILE The mission of Walking Mountains Science Center is to “awaken a sense of wonder and inspire environmental stewardship and sustainability through natural science education.” Walking Mountains is a community-based nonprofit 501c3 organization in Avon, Colorado that educates residents and visitors while helping businesses, individuals and local governments become more environmentally sustainable. Through the Energy Smart Colorado program, Walking Mountains provides energy coaching, comprehensive home energy assessments (at a highly discounted and affordable rate), and rebates to both businesses and homes, including increased specific income-qualified incentives. BACKGROUND & OVERARCHING GOALS In December 2016, the Town of Avon adopted the Climate Action Plan for the Eagle County Community, which has led to approval of an action-based/town specific CLIMATE ACTION PLAN implementation schedule, as well as Avon’s involvement as a partner in the local Climate Action Collaborative and their working groups. Also in 2016 while adopting the 2015 ICC/IECC building codes, the Town of Avon approved the adoption of the Exterior Energy Offset Program (EEOP). The EEOP is intended to “encourage sustainable, energy efficient, exterior heating solutions that conserve energy and natural resources”. When a proposed project includes exterior energy uses that cannot offset 50% of the energy used with renewable energy project owners can pay a fee-in-lieu. Page 2 of 2 Town of Avon Community Energy Efficiency Program – 2021 proposal By supporting the Energy Smart Colorado program at Walking Mountains, with funds from Avon’s EEOP, you are fulfilling the following intended uses of these funds, as the Energy Programs team will: Provide educational materials and outreach for Town of Avon residents, businesses, employees and building owners including but not necessarily limited to printed guides, efficient building educational events, a webpage with available resources, links, and information; Provide a rebate program for energy efficiency enhancements and renewable energy generation projects; and Special consideration is given to projects that positively affect occupants of local affordable housing or low income residents. PROPOSED GOALS & SCOPE OF WORK FOR 2021 During 2021, Walking Mountains will work towards the following in Avon: 1.Project management, and an annual energy savings report with data on number of homes and businesses worked with in the Town of Avon and resulting energy reductions (GHG reductions and kWh/THERMS); 2.Residential – Coordination of the Energy Smart Colorado program to provide free energy coaching, comprehensive home energy assessments (goal of 25 homes), and energy efficiency and Solar PV rebates (goal 15 rebates) to homeowners within the Town of Avon; 3.Residential (Income-Qualified) – Provide outreach and help residents with the application process within Avon for CARE (Colorado Affordable Residential Energy program), which provides energy efficiency upgrades to qualified homes for free (household income not to exceed 80% Area Median Income), and provide extra increased incentives for all income- qualified homes above and beyond CARE; 4.Commercial – Coordination of the Energy Smart business program providing free energy walk- through visits, energy coaching, and energy efficiency and solar rebates to businesses within the Town of Avon (goal 8 businesses). 2021 TOTAL ASK - from Town of Avon EEOP fund to Walking Mountains = $12,000 To reach as many homes and businesses as possible within the Town of Avon, Walking Mountains will also use funding provided from local utilities and Eagle County. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 12/29/2020 Arthur J.Gallagher Risk Management Services,Inc. PO Box 4190 Estes Park CO 80517 970-586-4407 970-586-3370 Philadelphia Indemnity Insurance Company 18058 WALKMOU-01 Pinnacol Assurance Company 41190WalkingMountains Science Center P O Box 9469 Avon CO 81620 605400787 A X 1,000,000 X 300,000 15,000 1,000,000 2,000,000 X Y PHPK2141286 6/9/2020 6/9/2021 2,000,000 A 1,000,000 X X X PHPK2141286 6/9/2020 6/9/2021 A X X 5,000,000PHUB7252016/9/2020 6/9/2021 X 10,000 B 4012812 5/1/2020 5/1/2021 500,000 500,000 500,000 A Educators Prof PHPK2141288 6/9/2020 6/9/2021 Each Occurence 1,000,000 RE:Town of Avon Community Energy Efficiency Program. Town of Avon,and its elected officials,officers,employees and agents are included as additional insured as respects General Liability policy,pursuant to and subject to the policy's terms,definitions,conditions and exclusions.The insurance provided in the General Liability policy is primary and any other insurance shall be excess only,and not contributing.The Producer will endeavor to mail 30 days written notice to the Certificate Holder named on the certificate if any policy listed on the certificate is cancelled prior to the expiration date.Failure to do so shall impose no obligation or liability of any kind upon the Producer or otherwise alter the policy terms. Town of Avon P O Box 975 Avon CO 81620