04-27-2010 Agreement Rader Engineering Town Hall HVAC Control Systems UpgradeTOWN OF AVON
PROFESSIONAL SERVICES AGREEMENT
Independent Contractor
Fixed Price — Not to Exceed
Town Council Approval
Project/Services Name:
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and
between Rader Engineering, Inc, a Company of the State of Colorado whose business
address is 40690 Highway 6, Suite E1, Avon, CO (the "Contractor ") and the TOWN OF AVON,
COLORADO ( "Town "), a Home Rule municipality of the State of Colorado. The Town and the
Contractor may be collectively referred to as the "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 As directed by and under the supervision of the Town Engineer for the
Town of Avon, the Contractor shall provide the Town with the services described
in Exhibit A (the "Services ").
1.2 Changes to Services 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 Town
Council, the Town Manager, or by a person expressly authorized in writing to
sign on behalf of the Town.
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
FORM: PSA 2009
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.
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. In
addition, more specific standards of Contractor performance are:
❑ included within Exhibit A; or
❑ attached to this Agreement as Exhibit ; or
X not included and not attached.
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
and its subsections.
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 B . Total compensation (including all reimbursable expenses)
shall not exceed Sixteen Thousand Dollars ($16,000.00).
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 the Internal Revenue Service as a deductible
business expense)
• Printing and Photocopying Related to the Services
• Long Distance Telephone Charges Related to the Services
• Charges incidental to securing needed information (e.g., charges
imposed to obtain recorded documents)
FORM: PSA 2009 2
Postage and Delivery Services
Lodging and Meals ( /y with prior written approval of the Town as
to dates and maximum amount)
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 Agreement 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.
2.3 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.
2.4 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. Mail, 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.
FORM: PSA 2009 3
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 of the Services in a timely and professional
manner.
3.4 The Contractor shall promptly comply with any written Town request for the Town
or any of its 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 maintaining 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
4.1 Term This Agreement shall be effective on the 28 day of April at 12:01 a.m.,
(the "Effective Date ") and shall terminate at 11:59 p.m. on December 31, 2010,
or on a prior date of completion of the Services or termination as may be
permitted by this Agreement; provided, however, that 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
Manager, Town Council and the Contractor and such extension does not alter or
amend any of the terms or provisions of this Agreement.
4.2 Continuinq Services Required The Contractor 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
Contractor shall not temporarily delay, postpone, or suspend the performance of
the Services without the written consent of the Town Council, Town Manager, or
a person expressly authorized in writing to direct the Contractor's services.
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 termination; 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
FORM: PSA, 2009 4
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 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 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 purpose of this 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 Section 4.3, nothing in this Section 4.3 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 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); or (2) for the submission of an invoice for
Services performed prior to the date of suspension in accordance with this
Agreement.
4.6 Reinstatement of Services Followinq 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 (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 Section 4.3; or (2) recommence performance in
FORM: PSA 2009 5
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 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 and its subsections shall be addressed to the person signing this
Agreement on behalf of either Town or Contractor at the address shown below 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 as follows:
Q� The Contactor shall secure and maintain the following ( "Required
Insurance "):
❑ 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 shall be
endorsed to include the Town as a Certificate Holder.
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. 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.
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
FORM: PSA 2009 6
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 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.
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.
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.
5.2 Additional Requirements for All Policies In addition to specific requirements
imposed on insurance by this Section 5.0 and its subsections, insurance shall
conform to all of the following:
A. For both Contractor insurance and Required 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.
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
and its subsections shall not limit, prevent, preclude, excuse, or modify any
FORM: PSA 2009 7
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.
5.4 Insurance Certificates Prior to commencement of the Services, the Contractor
shall submit to the Town 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 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.
6.0 OWNERSHIP OF DOCUMENTS
Any work product, materials, and documents produced by the Contractor pursuant to this
Agreement shall become property of the Town of Avon upon delivery and shall not be made
subject to any copyright unless authorized by the Town. Other materials, methodology and
proprietary work used or provided by the Contractor to the Town not specifically created and
delivered pursuant to the Services outlined in this Agreement may be protected by a copyright
held by the Contractor and the Contractor reserves all rights granted to it by any copyright. The
Town shall not reproduce, sell, or otherwise make copies of any copyrighted material, subject to
the following exceptions: (1) for exclusive use internally by Town staff and /or employees; or (2)
pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, C.R.S., to the extent
that such statute applies; or (3) pursuant to law, regulation, or court order. 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, or any Town — adopted Code of
Conduct or ethical principles.
FORM: PSA 2009 8
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:
A. 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
B. Withhold payment to the Contractor until the necessary services or corrections in
performance are satisfactorily completed; and /or
C. Deny payment for those services which have not been satisfactorily performed,
and which, due to circumstances caused by the Contractor, can not be
performed, or if performed would be of no value to the Town; and /or
D. 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 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, 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 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
FORM: PSA 2009 9
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 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 201TABOR 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 Town of Avon, 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 that the rule that
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 express written consent of the Town Council for Town of
FORM: PSA 2009 10
Avon. 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 for the Town of Avon. 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.
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 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
FORM: PSA 2009 11
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.
9.15 Compliance with Article XXVIII of the Colorado Constitution If and only to the
extent this Agreement constitutes a "sole source government contract" within the
meaning of Article XXVIII of the Colorado Constitution ( "Article XXVIII "), then the
provisions of Sections 15 through 17 of Article XXVIII ( "Amendment 54 ") are
hereby incorporated into this Agreement and the parties hereto shall comply with
the provisions of Amendment 54. In such a case, for purposes of this
Agreement, the Contractor shall constitute a "contract holder" for purposes of
Amendment 54, as shall any additional persons, officers, directors or trustees
related to the Contractor who qualify as "contract holders" pursuant to the
definition set forth in Article XXVIII. In addition, if and only to the extent this
Agreement constitutes a "sole source government contract," the Contractor
hereby certifies that it is not ineligible to hold any "sole source government
contract" pursuant to Amendment 54 or any contract thereunder, and the
Contractor hereby agrees to notify the Town immediately if, at any point during
the term of this Agreement, the Contractor shall become ineligible to hold any
"sole source government contract" pursuant to Amendment 54 or any contract
thereunder. If any provision or provisions of Amendment 54 are held to be
unconstitutional or otherwise invalid by a court of competent jurisdiction in a non -
appealable action, have been repealed retroactively or otherwise do not apply to
this Agreement, such provision or provisions shall no longer be incorporated into
this Agreement and the Parties shall have no obligations under such provision or
provisions.
9.16 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.
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.
If to the Town If to the Contractor
Town Manager
Attention: Drew Rader
Town of Avon
Rader Engineering, Inc.
P.O. Box 975
40690 highway 6, Suite E1
Avon, Colorado 81620
I Avon, CO 81620
With Copy to:
FORM: PSA 2009 12
Eric J. Heil, Town Attorney
Widner Michow & Cox
11333 E. Arapahoe Road
Suite 100
Centennial, Colorado 80112
10.0 SPECIAL PROVISIONS
X None.
❑ Attached to this Agreement as Exhibit ; or
❑ As follows:
FORM: PSA 2009 13
11.0 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
FORM: PSA 2009 14
THIS AGREEMENT is executed and made effective as provided above.
ATTEST
r ZOWN�
V { y,
TOWN OF AVON, COLORADO
By Z4 C (/t/
Mayor or Mayor Pro Tern
APPROVED AS TO FORM:
(Does)Not Inclu s)
TowwKttornfy
CONTRACTOR: Rader Engineering, Inc.
4 �
in
Name: J. Drew Rader
Position: Owner
FORM: PSA 2009 15
EXHIBIT A
Project/Services Name: Town Hall HVAC Control Systems Upgrade
Exhibit A - Page 1