23.12.22 PSA DTJ Sun Road/East Avon Sub Areas DocuSign Envelope ID:35E06955-9E44-4C51-AD9B-D948488498CA
2023 Professional
AVon Service Agreement
For Professional Planning Services
COLORADO ("Sun Road 1 East Avon Sub-Area Plans")
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") dated as of December 22, 2023, is
entered into by and between DTJ Design,whose business address is 3101 Iris Avenue, Ste. 130, Boulder,
CO 80301, ("Consultant") and the Town of Avon, Colorado, a home rule municipality of the State of
Colorado ("Town"and, together with the Consultant, "Parties").
RECITALS AND REPRESENTATIONS
WHEREAS, the Town desires to have performed certain professional services as described in this
Agreement; and
WHEREAS, the Consultant represents that the Consultant 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 Consultant 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. SERVICES AND CONSULTANT PERFORMANCE
1.1. Services and Work Product. As directed by and under the supervision of the Town Manager for
the Town of Avon, the Consultant 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 Consultant 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 Consultant and by the Avon Town
Council ("Town Council").
1.3. Independent Consultant. The Consultant shall perform the Services as an independent
Consultant 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 Consultant. 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 Consultant or the Consultant's
employees, sub-consultants, contractors, agents, or representatives, including coverage or benefits related
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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.
1.4. Standard of Performance. In performing the Services, the Consultant 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. Consultant represents to the Town that the Consultant 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 Consultant 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. Consultant shall indemnify, defend and hold Town harmless from any
and all claims, demands, and causes of action (excluding reasonable attorneys' fees and costs of suit) for
actual infringement or actual 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 Consultant
or arising from the use or sale of materials, equipment, methods, processes, designs, and information,
furnished by Consultant in connection with the Services. Consultant 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 subconsultant to Town.
1.6. Safety. When and to the extent that Consultant or any of its employees, agents, or subconsultants
are working under the terms of this Agreement, Consultant will comply, and cause all its employees,
agents, and subconsultants to comply,with applicable safety rules and security requirements.
1.7. Qualified Personnel. Consultant will make available all qualified Consultants, drafters, technical
and clerical personnel necessary to fulfill its obligations under this Agreement. Prior to commencement of
work, Consultant will provide Town with the names of all Consultant 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 Consultant will only be done with prior written approval of Town.
1.8. Removal of Personnel by Town. Town may, in its discretion, require Consultant to dismiss from
performance of the Services any personnel of Consultant or any subconsultant for any reason, effective
upon written notice from Town of such dismissal. Town will not be required to pay salary, or any other
costs associated with dismissed personnel effective upon Consultant's receipt of notice to dismiss from
Town.
1.9. Representations and Warranties. Consultant represents and warrants that the Services will be
performed in a manner consistent with other reasonable professionals providing similar services under
similar circumstances. Consultant 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. Consultant 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 related to the Services, whether created before,
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during, or after the termination of this Agreement. Access to such records will be provided to Town at no
cost.
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 Consultant and will
tender all such material to the court for judicial determination of the issue of disclosure and the Consultant
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. Consultant will promptly disclose to Town any and all
information which Consultant 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. COMPENSATION
2.1. Commencement of and Compensation for Services. Following execution of this Agreement by
the Town, the Consultant 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. For Time and Materials Task Orders. The CONSULTANT shall perform the Services and shall
invoice the TOWN for work performed based on the rates described in Exhibit B.
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 Consultant and proof of payment shall be provided by the
Consultant with the Consultant's monthly invoices:
• Vehicle Mileage (billed at not more than the prevailing per-mile charge permitted by the 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
• Lodging and Meals (only with prior written approval of the Town as to dates and maximum
amount permitted)
C. Non-reimbursable Costs, Charges, Fees, or Other Expenses. Any fee, cost, charge, penalty,
or expense incurred by the Consultant not otherwise specifically authorized by this Agreement shall
be deemed a non-reimbursable cost and shall be borne by the Consultant and shall not be billed or
invoiced to the Town and shall not be paid by the Town.
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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.
2.2. Payment Processing. The Consultant 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 Consultant 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 Consultant's invoice, the Town shall promptly review
the Consultant's invoice.
2.3. Town Dispute of Invoice or Invoiced Item(s). The Town may dispute any Consultant time,
Reimbursable Expense, and/or compensation requested by the Consultant described in any invoice and
may request additional information from the Consultant substantiating any and all compensation sought by
the Consultant before accepting the invoice. When additional information is requested by the Town, the
Town shall advise the Consultant 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 Consultant 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
Consultant or designee of the Consultant or upon deposit of such payment or notice in the U.S. Mail,
postage prepaid, addressed to the Consultant.
3. CONSULTANT'S GENERAL RESPONSIBILITIES
3.1. The Consultant shall become fully acquainted with the available information related to the Services.
The Consultant is obligated to affirmatively request from the Town such information that the Consultant,
based on the Consultant's professional experience, should reasonably expect is available and which would
be relevant to the performance of the Services.
3.2. The Consultant shall perform the Services in accordance with this Agreement and shall promptly
inform the Town concerning ambiguities and uncertainties related to the Consultant's performance that are
not addressed by the Agreement.
3.3. The Consultant shall provide all the Services in a timely and professional manner.
3.4. The Consultant 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 Consultant that are pertinent to the Consultant's performance under this Agreement for
the purpose of the Town performing an audit, examination, or other review of the Services.
3.5. The Consultant shall comply with all applicable federal, state, and local laws, ordinances,
regulations, and resolutions.
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3.6. The Consultant shall be responsible at the Consultant's expense for obtaining, and maintaining in a
valid and effective status, all licenses and permits necessary to perform the Services unless specifically
stated otherwise in this Agreement.
4. TERM AND TERMINATION
4.1. Term. The provision of services under this Agreement shall commence on November 29, 2023
(the "Effective Date") and will terminate on December 31, 2023 (cumulatively, the "Term"); provided,
however, under no circumstances will the Term exceed the end of the current Town Fiscal year(January 1
— December 31). The Consultant understands and agrees that the Town has no obligation to extend this
Agreement's Term or contract for the provision of any future services, and makes no warranties or
representations otherwise. Notwithstanding the foregoing; the Parties may mutually agree in writing to the
monthly extension of this Agreement for up to twelve (12) consecutive calendar months if such extension is
approved by the Town Council and the Consultant and such extension do not alter or amend any of the
terms or provisions of this Agreement.
4.2. Continuing Services Required. The Consultant shall perform the Services in accordance with
this Agreement commencing on the Effective Date until such Services are terminated or suspended in
accordance with this Agreement. The Consultant 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 Consultant 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 Consultant shall provide no further
services in connection with this Agreement after receipt of a notice of termination; and
B. All finished or unfinished documents, data, studies, and reports prepared by the Consultant
pursuant to this Agreement shall be delivered by the Consultant to the Town and shall become the
property of the Town, subject to the ownership restrictions in Section 6.0 of this Agreement; and
C. The Consultant 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 Consultant'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 Consultant 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 terminated 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 purposes 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 Consultant shall prepare a final accounting
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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 Consultant
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.
4.5. Unilateral Suspension of Services. The Town may suspend the Consultant's performance of the
Services at the Town's discretion and for any reason by delivery of written notice of suspension to the
Consultant which notice shall state a specific date of suspension. Upon receipt of such notice of
suspension, the Consultant 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 Consultant 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 Consultant 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 Consultant 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 pursuant 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. INSURANCE
5.1. Insurance Generally. The Consultant 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 Consultant.
The Consultant shall secure and maintain the following ("Required Insurance"):
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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 for 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 Consultant. 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 Consultants, 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.
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 Consultant'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 subConsultants. Such coverage
must include all automotive 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 Consultant ("Consultant 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
Consultant; 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 Consultant shall not be an insured party for any Town-obtained insurance
policy or coverage.
B. For both Required Insurance and Consultant Insurance, the Consultant shall be solely responsible
for any deductible losses.
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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 Consultant'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
Consultant arising from performance or non-performance of this Agreement. Failure on the part of the
Consultant 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 Consultant 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 Consultant from the Town pursuant to this Agreement.
5.4. Insurance Certificates. Prior to commencement of the Services, the Consultant shall submit to
the Town applicable certificates of insurance for all Required Insurance. Insurance limits, terms 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 Consultant 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.
6. OWNERSHIP OF DOCUMENTS
6.1. 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 the 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.
6.2. Obligations of Consultant's Personnel and Subconsultants. Consultant warrants it has
enforceable written agreements with all of its personnel and subconsultants to be involved in performing the
Services that:
A. assign to Consultant ownership of all patents, copyrights, and other proprietary rights created in the
course of their employment or engagement; and
B. obligate such personnel or subconsultants, as the case 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
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employment or engagement including, without limitation, any Work Product, all Consultant property
and any other information pursuant to this Section 6.0 OWNERSHIP OF DOCUMENTS.
6.3. 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,
Consultant 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.
6.4. Town Furnished Information. Title to all materials and all documentation furnished by the Town
to Consultant will remain in the Town. Upon payment in full for services rendered, Consultant will deliver to
the Town any and all Work Products 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.
6.5. The Consultant waives any right to prevent its name from being used in connection with the
Services.
6.6. Notwithstanding the foregoing, the Consultant shall retain all rights, titles, and interests, including
but not limited to all ownership and intellectual property rights, in all inventions, improvements, discoveries,
methodologies, models, formats, software, algorithms, processes, procedures, designs, specifications,
findings, and other intellectual properties developed, gathered, compiled or produced by the Consultant
prior to or independently of any of its services under this Agreement ("Background IF), including such
Background IP that the Consultant may employ in the performance of this Agreement, or may incorporate
into any part of the Work Product. The Consultant grants the Town an irrevocable, non-exclusive,
transferable, royalty-free license in perpetuity to use, disclose, and derive from such Background IP, but
only as an inseparable part of the Work Product. Third-party content that may be used or incorporated in
the Work Product shall not become the property of the Town. The Consultant shall secure all licenses
necessary to any third-party content incorporated into the Consultant's Work Product for the Town to utilize
the Consultant's services and the Work Product for their intended purposes.
7. CONFLICT OF INTEREST
The Consultant shall refrain from providing services to other persons, firms, or entities that would create a
conflict of interest for the Consultant with regard to providing the Services pursuant to this Agreement. The
Consultant 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. 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 Consultant substantially fails to perform
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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 Consultant. The remedial actions include:
8.1. Suspend the Consultant's performance pending necessary corrective action as specified by the
Town without the Consultant's entitlement to an adjustment in any charge, fee, rate, price, cost, or
schedule; and/or
8.2. Withhold payment to the Consultant 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 Consultant, 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, in its sole discretion, may exercise any or all of the
remedies individually or simultaneously.
9. 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 shall 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, consultants, 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.
9.3. Affirmative Action. Consultant will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. Consultant 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.
9.4. Americans with Disabilities Act. Consultant understands and agrees that no individual with a
disability shall, on the basis of the disability, be excluded from participation in this contract or from activities
provided for under this contract. As a condition of accepting and executing this contract, the Consultant
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agrees to comply with the "General Prohibitions Against Discrimination,"28 C.F.R. §35.130, and all other
regulations promulgated under Title II of The Americans with Disabilities Act.
9.5. 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 9.5 shall not authorize
assignment.
9.6. 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 Consultant. 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.
9.7. 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 laws. Upon the failure to appropriate such funds, this
Agreement shall be terminated.
9.8. 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, and the parties consent and agree to the jurisdiction of
such courts. 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.
9.9. 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.
9.10. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits
set forth in this Agreement shall not be assigned by Consultant without the express 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
any duty, obligation, or responsibility unless such release is clearly expressed in such written document of
assignment.
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9.11. 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.
9.12. Integration and Amendment. This Agreement represents the entire and integrated agreement
between the Town and the Consultant 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 Consultant.
9.13. 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.
9.14. 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.
9.15. 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 Consultant is in default of the Agreement, so long as the Town acts in good
faith.
9.16. Indemnity. To the fullest extent permitted by law, Consultant 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, excluding 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 caused by any
negligent act or omission of(i) Consultant, (ii) anyone directly or indirectly employed by Consultant or(iii)
anyone for whose acts Consultant 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
Consultant 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 Consultant'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 Consultant or the Consultant's agents, representatives, subconsultants, or suppliers. If
the Consultant is a person or entity providing architectural, engineering, surveying, or other design
services, then the extent of Consultant's obligation to indemnify and defend the Town may be determined
only after the Consultant's liability or fault has been determined by adjudication, alternative dispute
resolution, or otherwise resolved by mutual agreement between the Consultant 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
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DocuSign Envelope ID:35E06955-9E44-4C51-AD9B-D948488498CA
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 and 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 Consultant:
Bi11 Campie
Town of Avon
Eric Heil, Town Manager DTJ Design
100 Mikaela Way bcampie@dtjdesign.com
P.O. Box 975
Avon, Colorado 81620
eheil@avon.orq
With Copy to:
Town Attorney
Nina P. Williams
Wilson Williams LLP
(303) 376-8512
nina@wilsonwilliamsllp.com
Matt Pielsticker, Planning Director
100 Mikaela Way
P.O. Box 975
Avon, Colorado 81620
matt@avon.orq
10. 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 Consultant and bind their respective entities.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK-SIGNATURE PAGE FOLLOWS]
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DocuSign Envelope ID:35E06955-9E44-4C51-AD9B-D948488498CA
THIS AGREEMENT is executed and made effective as provided above.
TOWN OF AVON CONSULTANT
,-DocuSigned by: ,-DocuSigned by:
e,.,, ii.,,L bitt, Cep«.
BY: g8 &3- 94EC3241G.. By. A2P(1 72A14111.
Bi11 Campie
Name: Eric Heil Name:
Title: Town Manager Title: President
APPROVED AS TO FORM:
rl7J 4
DocuSigned by:
F2&EEG1-EC4EC...
Nina P.Williams, Town Attorney
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EXHIBIT A
("Services")
PHASE I: PROJECT INITIATION (6 weeks)
TASK 1: Project Management+Administration
DTJ will assist the Town staff to manage the day-to-day project administration and be responsible for:
■ Contract scope of services, scheduling, and budgets
■ Task management and quality controls
■ Monthly invoicing and communications
■ Work Plan Activities and Schedule
DTJ will develop a Project Work Plan to identify project staff and consultant team members, key
stakeholders (property and business owners and boards and commissions) and contact information. The
Work Plan will identify key meetings scheduled over the estimated 5-month project period. A minimum of
one DTJ team member will attend each PM meeting. PM meetings may be virtual or in-person (in-person
meetings will be combined with other scheduled trips). Project Team Meetings include one[1]meeting per
week(16-week project duration from Notice to Proceed to submittal of the Draft Sub Area Plans, averaging
one[1]-hour per meeting).
TASK 2: Project Kick-off Meeting + Site Tour
DTJ will participate in an in-person Project Kick-off Meeting and Site Tour on November 29, 2023, with the
Town staff to verify the objectives, assumptions, expectations, and deliverables. Participants will identify
key project issues and desired outcomes and identify measures of success of this phase of services.
Participants will confirm any required community outreach and engagement process and clarify consultant
and staff roles and responsibilities, and overall plan expectations. Ideally, the community engagement
schedule will be included as part of the Project Work Plan as a deliverable. This task will:
■ Review key outreach and engagement strategies
■ Define staff and consultant roles and responsibilities
■ Identify stakeholder and focus group participants and milestones
■ Confirm web content needs and responsibilities
■ Define appointed and elected boards and commission update milestones
■ Clarify feedback loops and decision-making processes
TASK 3: Data Gathering, Site Inventory + Base Mapping
DTJ will gather existing data and conduct field observations and interviews with staff. The data gathering
process will include a review of the following:
■ 2017 Comprehensive Plan vision, values, priorities, and strategies
■ 2008 East Town Center District Plan
■ 2021 Community Housing Plan
■ 2017 Multimodal Transportation Plan
■ 2015 Walkability Plan
■ Town of Avon Capital Improvement Program
■ Site Characteristics (urban form, view sheds, landscape, and public spaces)
■ Land Uses, Property Ownership, Tenant Uses
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■ Town of Avon Development Codes + Standards + Design Guidelines
■ Street Standards and Parking Requirements
Mobility, Access + Parking
DTJ will review land uses, public realm, mobility, access, and parking and document site conditions through
mapping, photography and field observations and discussions with local property owners and businesses.
The review will document the current urban form and character and consider parking strategies and land
use zoning regulations and activated public spaces for the Sun Road and East Town Center areas.
A detailed traffic engineering analysis is NOT included as part of the Sub Area study. DTJ will assess the
current transportation system and local street network, and on-street parking in each Sub Area. DTJ will
consider the findings of past studies by Dan Burden and LSC. Our review will include:
■ Current capital improvement program to understand the immediate and next 4 to 5-year priorities,
and how those priorities may impact the redevelopment opportunity for the East Town Center and
Sun Road area.
■ Current parking regulations and parking supply at the parcel level to ensure parking standards
function in a way that is consistent with the type of development the community desires in the
future.
■ Consideration of national best practices to establish key parameters, guiding principles, and
recommendations to balance parking supply and demand.
The parking assessment will document on-street parking supply and include a review of current parking
development regulations, and the potential for shared parking scenarios in the study area.
Economic Market Analysis
The Sub Area study will NOT include a detailed economic market and modeling effort.
Infrastructure Assessment
JVA will review current infrastructure (streets, utilities, stormwater, wastewater) and prepare mapping data
of existing utilities, drainage and stormwater systems, and capacity thresholds for proposed new
development and potential utility connections to parcels within the Sub Area. JVA will provide a summary of
the existing utility infrastructure capacities and required upgrades to accommodate proposed improvements
for each Sub-Area Plan.
TASK 4: Stakeholder Interviews
DTJ will participate in a series of interviews with local businesses and property owners, real estate
developers, and other interests who have a stake in the redevelopment of the Sub-Areas. Interview
sessions will help the design team to drill down into details as needed. Interviews will be casual one-on-
one coffee meetings or informal group sessions to address key topics (property ownership, redevelopment
opportunities, timelines, and impacts). Up to four individual or group interviews are anticipated.
The staff will Identify potential participants, determine key topics, and schedule interviews. Potential
stakeholders may include:
■ Sun Road Plan: US Postal Service, Walgreen's, 1st Bank. Stakeholders
■ East Town Center: Hoffmann Commercial Real Estate, Christy Lodge, Chapel Square Association,
Kroger, and other property managers.
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PHASE I DELIVERABLES:
• Project Kick-off Meeting + Site Tour
• Project Work Plan /Project Schedule
• Study Area Base Map
• Stakeholder List+ Contact Information/Stakeholder Interviews
• Weekly Project Management Team Calls
All deliverables will be provided in PDF format. Up to one technical review with consolidated written
comments shall be provided by the staff.A final version shall be incorporated by staff as part of the Draft-
Final Sub-Area Plan(s).
PHASE II: EXPLORATION + IDEAS (7 weeks)
TASK 5: Visioning I Alternatives Workshop
DTJ will facilitate a half-day Visioning/Alternatives Workshop in Avon to define the core values and needs
and reaffirm the vision and guiding principles and review up to two high level Alternatives for the Sub
Areas. Participants will identify properties and potential for redevelopment opportunities, evaluate current
planning policies and identify criteria for selecting key priority redevelopment site opportunities. The intent
is to establish a framework for a realistic plan for redevelopment of the Sub Areas and clarify how current
development regulations and standards may impact the desired urban form outcomes.
In conjunction with the Town staff, DTJ will develop up to two conceptual alternative scenarios for the
combined Sun Road and East Town Center Sub Areas. The Workshop process will review the Sub Areas
as a collective considering connections and adjacencies. Workshop participants will evaluate the
alternatives and document opportunities and challenges associated with each concept. The evaluation will
consider property owner and local business needs, infrastructure requirements, new mix of uses (retail,
housing, lodging, office), parking and access, and opportunities for new civic spaces.
DTJ will provide map graphics to illustrate concepts as mixed-use development, density and urban form,
access and circulation, parking, services, civic space, and streetscape design. An estimated build-out
development program will be defined to help guide the assessment of the alternatives under study. Each
alternative will be graphically represented as 2D plan views and 3D white-box massing models to visually
define the conceptual land use, streets and blocks, urban form and massing, and public spaces. Following
the conclusion of the Workshop, DTJ will review the input and provide a summary of the findings. The
Workshop Summary will be provided in PDF format to the Town staff.
TASK 6: Strengths, Weaknesses, Opportunities Assessment
DTJ will develop a Strengths, Weaknesses, Opportunities Assessment summarizing each alternative
independently. DTJ will apply criterion such as anticipated future build-out program, infrastructure needs,
private parcel ownership, sustainability and resiliency practices, and best management and operational
considerations.
The Assessment will be in the form of a matrix table to illustrate an objective analysis of each alternative
under study. This information will be provided to staff for input and be presented to the stakeholders for
additional input and comments. Participants will identify preferences for a particular alternative or a
combination of the two alternatives to formulate as preferred alternative as part of the next phases of the
process. Detailed cost estimates will NOT be included at this time.
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TASK 7: Downtown Development Authority, Planning Commission +Town Council Updates
DTJ will be available to participate in up to 3 Downtown Development Authority (DDA)work sessions, and
one additional joint Planning Commission and Town Council Update meeting. A total of 7 trips to Avon are
anticipated, including the initial Kick-off meeting (1), combined Visioning/Alternatives Workshop (1),
Preferred Concept Workshop (1) and 3 DDA and 1 joint PC and Town Council update).
TASK 8: Preferred Concept Plan Workshop
Based on the previous input, DTJ will develop a Preliminary Preferred Concept Site Plan for the Sub-Areas.
The Preferred Concept Workshop will define key plan and urban design and placemaking strategies and
identify initial capital improvement program needs and recommendations for public-private partnerships.
DTJ will identify land use development code topics that may be inhibitors to the type of development that is
sought. The evaluation will identify pros and cons of assorted options and provide an initial set of
recommendations for consideration. The Sub Area Plan policy recommendations will focus on protecting
existing uses and property ownership, and enhancing locally owned businesses, while minimizing
unintended consequences such as small business displacement in Avon.
The Preliminary Concept Site Plan will be a graphically represented site concept plan in 2D plan view and
supported by a 3D Sketch-up massing model and illustrative diagrams to articulate the Sub-Areas long-
term vision and intent. The Preliminary Concept Site Plan will be supported with precedent images to
illustrate design concepts for mixed-use development, proposed density and uses, urban form, access and
circulation, parking, services and activation, civic park space, and streetscape designs.
PHASE II DELIVERABLES:
• Stakeholder Interviews (up to 4 individual or small group sessions)
• DDA, PC, Town Council Updates
• Combined Visioning and Alternatives Workshop (up to 2 scenarios) + Summary Notes
• Strengths, Weaknesses, Opportunities Matrix
• Preliminary Preferred Concept Workshop, Preferred Site Plan + Summary Notes
• Project Management Team Calls
All deliverables will be provided in PDF format. Up to one technical review with consolidated written
comments shall be provided by the staff.A final version shall be incorporated by staff as part of the Draft-
Final Sub-Area Plan(s).
PHASE III: SYNTHESIS +SUB-AREA PLAN FORMATION (4 weeks)
TASK 9: Urban Design Framework, Implementation Strategies + Recommendations
DTJ will assist staff to develop a series of recommendations addressing the Urban Design
Framework for each Sub Area. The Urban Design Framework will illustrate proposed land uses, streets and
blocks, massing concepts, public realm, and architectural typologies to help support the vision for built
urban form. The Urban Design Framework will include an illustrated site plan, precedent images and up to
3 digital Sketch-up model views to address street and aerial perspective views.
DTJ will help define a high-level implementation and phasing strategy that will address short-term and long-
term investments for the Sub-Area Plans. The implementation strategies will consider a range of options
such as public-private partnerships, leveraging local and state funding, potential bond programs, and grant
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initiatives to help demonstrate the Town's ability to assist property owners in executing the plans
recommendations.
TASK 10: Draft Sub-Area Plans
DTJ will provide a draft narrative graphic map exhibits, precedent images, and digital graphics to support
the Draft Sub Area Plans. The Town staff will take the lead in the production of content and assembling the
draft documents. DTJ will provide technical support as needed.
PHASE III DELIVERABLES:
• Revised Preferred Concept Site Plan (digital illustrated 2D map exhibit)
• Draft Urban Design Framework/ Implementation Strategies and Phasing Plan
• Up to 10-page written document explaining background and public process. Content and
assembling document drafts by staff.
• Project Management Team Calls (up to 4 weekly Teams Calls)
All deliverables will be provided in PDF format. Up to one technical review with consolidated written
comments shall be provided by the staff.A final version shall be incorporated by staff as part of the Draft-
Final Sub-Area Plan(s).
PHASE IV: SUB AREA PLAN APPROVAL
TASK 11: Draft-Final Sub Area Plans
DTJ will support staff and provide graphics and text content as needed to support the Preferred Concept
Plan. DTJ will address up to two sets of comments provided by Town staff.
TASK 12: Planning Commission +Town Council Public Hearings
DTJ will assist the Town staff in preparing presentation materials for the required Planning Commission and
Town Council Public Hearings as part of the Plan approval process. It is assumed that staff will lead
presentations on the Draft-Final Sub Area Plans with key stakeholder groups, boards, and elected officials
and staff will incorporate final written review comments as part of the Final Sub-Area Plans.
TASK 13: Final Reporting + Project Completion
A final close-out and exchange of materials and digital files supporting the Sub-Area Plan will be provided
in digital PDF, Word, GIS and/or InDesign files.All original native files will be provided to the Town upon
project completion.
PHASE IV DELIVERABLES:
• Draft-Final Sub-Area Plan(s) by staff
• Final Reporting + File Transfer+ Project Close out
ASSUMPTIONS
• DTJ will plan for up to seven visits to the Town of Avon.
• Additional in-person meetings will be charged based on the approved billable rate.
• An estimate of$1,000 per additional meetings/visits.
• No additional site survey, parcel or topographic data will be developed.
• No additional community engagement or outreach is included
• Assume using existing GIS data to develop up to 2 Alternatives and a Preferred Concept Plan.
• No additional traffic or market economic data will be developed.
• Cost proposal for additional traffic counts can be provided upon request.
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■ No artist-style 3D digital renderings are included.
■ Additional digital renderings as required generally cost$2,500 per rendering.
Optional Services: At the request of the Town, DTJ can provide up to 3 artist-style digital renderings—one
street view and two aerial perspectives. Digital rendering generally costs $2,500 per rendering.
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EXHIBIT B
("Rates")
COMPENSATION AND PAYMENT FOR SERVICES
Regarding the Services to be provided under this Proposal, DTJ will execute the Services for a Fixed Fee
of$76,110 including travel and reimbursable expenses. The Town of Avon will be billed monthly, based on
the percentage of completion.
PHASE I $18,050
PHASE II $44,880
PHASE III $ 8,130
PHASE IV $ 3,050
Subtotal (labor) $74,110
Direct Reimbursable Expenses $ 2,000 (2.7%)
TOTAL $76,110
Additionally, DTJ and its consultants, if any, shall be reimbursed for expenses incurred in the interest of the
Project. Those prices listed in DTJ's Standard Terms of Agreement shall apply to those reimbursable items
produced in-house. Other expenses associated with procuring and/or producing needed item(s) or
service(s)will be billed at no less than cost, and at no more than cost-plus-fifteen percent(15%). Such
expenses will include but are not limited to printing, visual documentation of Project graphics, postage,
delivery, and mileage. Travel expenses related to the Project will be billed at 1.05 times the cost.
FEES AND FEE PAYMENTS
Fee Structure
Fees and fee payments for the Scope of Services provided by DTJ under this Agreement shall be
according to those amounts and schedules specified, based upon the following Standard Hourly Billing
Rates:
Position Rate/Hour
Staff $80 -$150
Senior Designer/Associate/ PM $150 -$225
Principal /Associate $200 -$325
These rates are subject to review and adjustment in January and July of each calendar year by DTJ.
Any overtime services authorized by the Client shall include compensation at 1.5 times regular billing rates
for those required employees who are not exempt from Federal overtime requirements.
STANDARD PRICES FOR REIMBURSABLE EXPENSE ITEMS PRODUCED IN-HOUSE
Large Format Copy/PrintlScan$0.95/s.f. Small Format Copy/Print/Scan B&W/Color
Large Format Mylar Copy/Print$8.85/s.f. 8.5 x 11 $0.10 ea. $0.90 ea.
11 x 17 $0.20 ea. $1.80 ea.
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