03-14-2012 Agreement Camp Dresser and McKee, Heat Recovery Project System Expansion ReportTOWN OF AVON
PROFESSIONAL SERVICES AGREEMENT
Independent Contractor
Cost Plus Fixed Fee — Not to Exceed Total Price
Town Council Approval
Project /Services Name: Avon Community Heat Recovery Project System Expansion
Report
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and between,
Camp Dresser and McKee, Inc. 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.
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1.3 Independent Contractor. The Contractor shall perform the Services as an
independent contractor and shall not be deemed by virtue of this Agreement to
have entered into any partnership, joint venture, employer /employee or other
relationship with the Town other than as a contracting party and independent
contractor. The Town shall not be obligated to secure, and shall not provide, any
insurance coverage or employment benefits of any kind or type to or for the
Contractor or the Contractor's employees, sub - consultants, contractors, agents, or
representatives, including coverage or benefits related but not limited to: local,
state, or federal income or other tax contributions; insurance contributions (e.g.,
FICA); workers' compensation; disability, injury, or health; professional liability
insurance, errors and omissions insurance; or retirement account contributions.
1.4 Standard of Performance. In performing the Services, the Contractor shall use that
degree of care, skill, and professionalism ordinarily exercised under similar
circumstances by members of the same profession practicing in the State of
Colorado. Contractor represents to the Town that the Contractor is, and its
employees performing such Services are, properly licensed and /or registered within
the State of Colorado for the performance of the Services (if licensure and /or
registration is required by applicable law) and that the Contractor and employees
possess the skills, knowledge, and abilities to competently, timely, and
professionally perform the Services in accordance with this Agreement.
1.5 Anticipated Project Schedule. The following is a list of anticipated milestone dates
for the Project:
• Notice to Proceed — March 14, 2012
• Report Completion — May 25, 2012
Contractor's services shall be performed as expeditiously as is consistent with services
provided by firms with a high level of expertise and skill and the orderly progress of the
Project. The Contractor shall provide a detailed schedule for the performance of
professional services upon award which will be consistent with the dates shown above.
The schedule shall include allowances of time for Town review and for approval by other
outside entities required by the Project. Contractor agrees to work in an expeditious
manner within the sound exercise of its judgment and Standard of Care in the
performance of the Agreement. Time is of the Essence in the performance of this
Agreement. By executing this Agreement, Contractor confirms that the time limitations
set forth herein for the performance of the Contractor's services are reasonable periods
for performing its services hereunder.
1.6 Design within Funding Limitations
A. Not Used
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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. Cost Plus fixed Fee 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 Thirty
Thousand Dollars (30,000.00).
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)
a 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)
® Postage and Delivery Services
® Lodging and Meals (only with prior written approval of the Town as to dates and
maximum amount)
® Subcontractor or subconsultant fees
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.
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2.2 Payment Processing. The Contractor shall submit invoices and requests for payment
in a form acceptable to the Town. Invoices shall not be submitted more often than
once each month unless otherwise approved by this Agreement or in writing by the
Town. Unless otherwise directed or accepted by the Town, all invoices shall contain
sufficient information to account for all Contractor time (or other appropriate
measure(s) of work effort) and all authorized reimbursable expenses for the Services
during the stated period of the invoice. Following receipt of a Contractor's invoice,
the Town shall promptly review the Contractor's invoice.
2.3 Town Dispute of Invoice or Invoiced Item(s). The Town may dispute any Contractor
time, reimbursable expense, and /or compensation requested by the Contractor
described in any invoice and may request additional information from the
Contractor substantiating any and all compensation sought by the Contractor before
accepting the invoice. When additional information is requested by the Town, the
Town shall advise the Contractor in writing, identifying the specific item(s) that are
in dispute and giving specific reasons for any request for information. The Town
shall pay the Contractor within forty -five (45) days of the receipt of an invoice for
any undisputed charges or, if the Town disputes an item or invoice and additional
information is requested, within thirty (30) days of acceptance of the item or invoice
by the Town following receipt of the information requested and resolution of the
dispute. To the extent possible, undisputed charges within the same invoice as
disputed charges shall be timely paid in accordance with this Agreement. Payment
by the Town shall be deemed made and completed upon hand delivery to the
Contractor or designee of the Contractor or upon deposit of such payment or notice
in the U.S. 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.
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
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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 all royalties and
patents and 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 14th day of March at 12:01 a.m.,
( "Effective Date ") and shall terminate at 11:59 p.m. on December 31, 2013, 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 Continuing 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
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
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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 Following Town's Unilateral Suspension. The Town may
at its discretion direct the Contractor to continue performance of the Services
following suspension. If such direction by the Town is made within (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
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suspension is considered a unilateral termination of this Agreement pursuant to
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 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 in this Section 5.1. The insurance required herein 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.
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 shall be endorsed to include the Town as a Certificate
Holder.
B. Comprehensive General Liability insurance with minimum combined single limits
of Two Million Dollars ($2,000,000.00) Dollars each occurrence and of Four
Million Dollars ($4,000,000.00) 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
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the Town, and its elected officials, officers, employees and agents as additional
insured parties.
C. Comprehensive Automobile Liability insurance with minimum combined single
limits for bodily injury of not less than of One Hundred Thousand Dollars
($100,000.00) each person and each accident and for property damage of not
less than Fifty Thousand Dollars ($50,000.00) each accident with respect to each
of the Contractor's owned, hired and non -owned vehicles assigned to or used in
performance of the Services. The policy shall contain a severability of interests
provision. Such insurance coverage must extend to all levels of subcontractors.
Such coverage must include all 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 Two Million Dollars ($2,000,000.00) per claim and Four Million
Dollars ($4,000,000) annual aggregate. Such policy of insurance shall be
obtained and maintained for two (2) years 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 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.
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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 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, for which the
Contractor has been compensated, pursuant to this Agreement, whether delivered to the Town
or not, shall become property of the Town of Avon 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
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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.
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:
L 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
ii. Withhold payment to the Contractor until the necessary services or corrections
in performance are satisfactorily completed; and /or
iii. Deny payment for those services which have not been satisfactorily performed,
and which, due to circumstances caused by the Contractor, cannot be
performed, or if performed would be of no value to the Town; and /or
iv. Terminate this Agreement in accordance with this Agreement.
If the Agreement is terminated by the Town for cause based on Contractor's negligent
performance, Contractor shall be liable and responsible for all expenses incurred by the Town
in selecting an alternate contractor and advancing the alternate contractor's scope of
professional services to a similar level of progress to the date of termination of Agreement, to
the extent such expenses are caused by or result from Contractor's negligent performance.
The foregoing remedies are cumulative and the Town, it its sole discretion, may exercise any or
all of the remedies individually or simultaneously.
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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
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 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
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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
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 Contractor from
performance of any duty, obligation, or responsibility unless such release is clearly
expressed in such written document of assignment.
9.10 Inconsistencies between Provisions: In the event of an inconsistency between
provisions of the Agreement and any other provisions, incorporations by reference,
or attachments, the strictest interpretation shall apply to the Town's benefit.
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9.11 Subcontractors: All terms of the agreement, its parts, attachments, or
incorporations by reference shall remain in full force for all subcontractors
performing work under this Agreement.
9.12 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.
9.13 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.
9.14 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.
9.15 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.
9.16 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
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knowledge. The Contractor shall not terminate the subcontract if, during such three
days, the subcontractor provides information to establish that the subcontractor has
not knowingly employed or contracted with an illegal alien. The Contractor is
required to comply with any reasonable request made by the Department of Labor
and Employment made in the course of an investigation undertaken to determine
compliance with this provision and applicable state law. If the Contractor violates
this provision, the Town may terminate this Agreement, and the Contractor may be
liable for actual and /or consequential damages incurred by the Town,
notwithstanding any limitation on such damages provided by such Agreement.
9.17 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.
9.18 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.
9.19 Errors and Omissions, Correction
The Contractor shall conform to the industry- accepted standard of care on quality
and workmanship. The Contractor shall, without additional compensation, correct or
revise any of the Contractor's negligent errors or omissions in the designs, drawings,
specifications, reports, and /or other services (e.g. all work products) immediately
upon notification by the Town. When negligent errors or omissions are discovered
during construction, in addition to correcting the work product at no additional cost
Page 14 of 16
to the Town, the Contractor shall be liable for the difference between what
"correct" construction will cost and what it would have cost had the drawings,
specifications, et al, been correct, including tear -out, demolition, and re -work. The
Contractor will not be responsible for correcting errors or omissions caused by Town
staff in conjunction with the Contractor's services.
9.20 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
Town of Avon
P.O. Box 975
Avon, Colorado 80620
With Copy to:
Eric J. Heil, Town Attorney
Heil Law and Planning, LLC
2696 South Colorado Blvd., Suite
550
Denver, CO 80222
10.0 SPECIAL PROVISIONS
The following attachments are included and made a part of this Agreement:
Exhibit A: Scope of Services
Exhibit B.1: Cost Budget Breakdown
i��[Ij�riTl�'1
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
Page 15 of 16
THIS AGREEMENT is executed and made effective as provided above.
TOWN OF AVON, COLORADO
By<-__..m�,._�._
Rich Carroll, Mayor
ATTEST: ` :r APPROVED AS TO FORM:
(Do of Include ts)
Patty, cK nny, Town1clerk Eric J. Hef, Town Attorney
Page 16 of 16
CONTRACTOR:
as
Name:
Position:
Meat Recovery System Expansion Feasibility Study
Scope of Work
Background
In January 2011, the Town of Avon started up a wastewater effluent heat recovery system that
extracted heat from wastewater effluent using a heat pump. The system provides heat to a
community heat loop that runs from the Avon Wastewater Treatment Plant to the downtown area
of the Town of Avon. Currently, the Town of Avon Recreation Center, the buildings constructed
as part of the project, and the raw water influent pump station for the Avon Water Treatment
Plant utilize heat from the system for heating needs. The recreation center uses the heat to heat
the recreation center swimming pools, whereas the buildings are using the heat to meet space
heating needs.
The full system capacity is not currently being used. The original intent was that the system
would be used for heating streets and sidewalks in the downtown corridor of the Town of Avon
and thus be able to melt snow and ice. This project has not yet been constructed. However, even
when this project is constructed, there will be some additional capacity remaining. Additionally,
with the major components of the system constructed — the heat pump and heat buildings and the
heat loop between the wastewater treatment plant and the downtown — adding capacity to the
project should have a lower cost than the original construction.
The purpose of this this scope of work will be to study the expansion of the existing heat
recovery system. In such the following expansion alternatives will be examined:
® System heat for the existing Avon Station Snowmelt System
® System heat for a new snowmelt system along the pedestrian mall of Lettuce Shed Lane
® Heat supply and return for future facilities located in undeveloped Lot 61 and Lot B
® System heat for existing buildings in the Town Center, including the Seasons, Lot A, and
Lot C, and the existing Town Hall
Task 1 Project Management and Quality Control
Purpose or Objective:
The objective of this task is to manage the project in order to produce a quality study and report,
on time, and within budget. Major activities include project administration and quality
assurance /quality control. Meetings and workshops are included separately under Task 5.
Description:
CDM will develop and conduct the procedures and processes for project management activities.
Among the procedures and processes that will be conducted under this task are the following:
Prepare a Project Management Plan (PMP). The PMP will provide team members
information on the project- specific procedures to be employed on the project. The PMP
will be an internal CDM working document but will be made available to the Town of
Avon.
Communicate regularly with the Town of Avon's project manager; an average of one status
update phone call is assumed every month throughout the project duration.
Submit monthly invoices to the Town of Avon's project manager that include the budget
status of each task, the amount expended for each task, and the remaining budget for each
task(was amount expended and remaining for each task). If required, CDM will keep a list
and estimate of hours for any future tasks that may be considered out of scope.
Conduct reviews of calculations on an ongoing basis. Design calculations performed by the
various disciplines will be reviewed by technical advisors independent of the core design
team.
Deliverables
• CDM's project management plan will be made available to the Town of Avon upon request.
• Monthly invoices and progress reports.
• CDM's QA/QC procedures, including but not limited to checks and reviews of calculations
are internal procedures and no work products will result.
Task 2 Information Gathering
Purpose or Objective:
The objective of this task is to assemble, gather, and determine the necessary information to
conduct the study.
Description:
As a first step, CDM will review existing information on the Town and the Eagle River Water
and Sanitation District (ERSWD) systems and infrastructure. This information will include the
following:
• Design and submittal information from the Avon Station snowmelt system
• Design information from the Town's Main Street Project
• Building HVAC system drawings and control descriptions for the existing building in the
Town Center and the existing Town Hall
• Energy records for the existing buildings in the Town Center and the existing Town Hall
Deliverables
® None
Task 3 Alternatives Development
Objective
The objective of this task is to develop each of the above alternatives into conceptual level
designs.
Description
CDM will develop informational cost estimates for each of the 4 alternatives identified in the
Background of this scope of work. The informational cost estimates will be based on lists of
major equipment, process flow diagrams, and design criteria developed to size and project the
equipment requirements for the alternatives. Where necessary to communicate piping runs or
modifications to yard piping, site drawings or aerial /satellite photographs will be marked up. No
other drawings will be developed.
Construction cost estimates for each of the four alternatives will be developed. Cost estimates at
this stage will based on past projects. Construction cost estimates will not be developed drawing
take offs and vendor proposals of equipment specifications.
For alternatives that tie into existing building HVAC systems and domestic water systems, heat
demands, if not readily available from facility utility bills, will be estimated based on building
square footage, typical building temperatures, and historical outside ambient temperatures. Cost
estimates for modifications to existing building HVAC and domestic water systems will be based
on similarly sized buildings and buildings with similar size uses. Quantification of the necessary
air handling units and other equipment will not be completed.
Operations and maintenance cost information will be calculated as a net impact to existing costs.
Total operational and maintenance costs will not be calculated. Greenhouse gas emissions
estimates will be based on energy balances. Where applicable, greenhouse gas emission factors
from local utility providers will be used. In the absence of local greenhouse gas emission factors,
national greenhouse gas emissions factors will be used.
The current list of alternatives includes an undefined alternative for future facilities. This Scope
of Work assumes that the Town of Avon will instruct CDM Smith on the amount of heat
demand, the temperature of the heat, and the volume of hot water required for this use. CDM
Smith also assumes that the temperature of the heat required will be less than 135 °F, such that it
can be reasonably supplied by a heat pump based heat recovery system.
Deliverables
® No specific deliverables for this task. The project deliverable will be provided in Task 4.
Task 4 Summary 'Technical Memorandum
Objective
Summarize the project background, analyses completed, decisions made, develop conclusions
and document recommendations for the project.
Description
As a result of the discussion and decisions made during the project meetings, CDM will develop
a technical memorandum to summarize and document the project. The memorandum will be
initially submitted as a draft version. The Town of Avon and other stakeholders will review the
draft and provide comments to CDM. Comments from the Town of Avon and other stakeholders
shall be consolidated into a single comments list that does not contain any conflicting
recommendations or instructions. CDM will finalize the memorandum based on these comments.
Deliverables
• Draft memorandum (electronic as a MS Word document)
• Final memorandum (electronic as a PDF document)
Task 5 Meetings and Collaboration
Objective
Meetings will be conducted to set goals and objectives, review information, and make decisions.
Description
This task is for the work associated with collaborating with the Town of Avon and other project
stakeholders. The following meetings will be conducted during the project:
® Project Kick off Conference Call. The project kickoff conference call will be used to define
the critical success factors for the project, including the analysis processes, schedule,
activities, and tasks needed to achieve success. In addition, the call will assign
responsibilities for carrying out the tasks.
Deliverables
For each of the meetings identified above CDM will develop the following:
• Meeting Agenda
• Meeting minutes
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To: Honorable Mayor and Town Council Initials
Thru: Larry Brooks, Town Manager
Legal Review: Eric Heil, Town Attorney
From: Justin Hildreth, P.E., Town Engineer j¢
Jeffrey Schneider, P.E., Project Engineer
Date: February 8, 2012
Re: Award of Avon Community Heat Recovery Expansion Feasibility Study to CDM
Smith
Summary: Town Staff provided an update on the Community Heat Recovery System (System)
operation at the September 27, 2011 work session, during which existing system operations, mall
improvements, and the possibility of system expansion was presented. CDM Smith, designer of the
System, provided a proposal to conduct a feasibility study to determine the feasibility and preliminary
costs of certain system expansion options. The Professional Services Agreement (PSA) is included
as Attachment A, and the Scope of Work and budget for the study is included as exhibits to the PSA.
Staff recommends approval of the PSA and award of the Study to CDM Smith for an amount not to
exceed $30,000, on a cost plus fixed fee basis.
Discussion: Council directed Staff to retain a consultant to study the feasibility of adding to the Heat
Recovery System. The System is currently operating at approximately one -third of its capacity since
it was designed to provide snowmelt energy for Main Street. Main Street has since been postponed
indefinitely, so Staff is looking at ways of utilizing the excess heat energy in the town core area.
ti Areas identified for the study include: existing Avon Station, proposed Mall Improvements and
Lettuce Shed Lane, future undeveloped lots B and 61, and retrofits for the Seasons, Avon Center,
Sheraton, and Town Hall. Since CDM Smith was the designer of the project and has by far the most
expertise on the System, Staff is comfortable providing a sole source justification for the
procurement. The expense of getting another consultant up to speed on the existing System would
negate any potential savings in soliciting an alternate consultant.
CDM Smith will provide informational cost estimates, major equipment lists, process flow diagrams,
and design criteria for the system expansion. This Study will be a starting point for full design of
system expansion if additional grant funding becomes available or if a public /private partnership
develops. For the private lots, the Study will be a useful tool for a future building designer for how to
tie in to what will become Avon's sustainable central heat utility. In addition, a study such as this is
often the basis for a successful grant application. With improvements planned for the Mall area
ahead of the 2015 World Championships as well as development possibilities in Lot 61, the timing of
this study will be critical. The study will be completed in approximately May 2012.
Financial Implications: At inception in 2011, this project was to be funded with the excess funds in
the Heat Recovery construction budget. That project was closed out in the 2012 CIP, so Staff will
present a budget amendment at the first March meeting which will include an appropriate budget for
this line item, likely in the form of a new capital project. Execution of this contract will be contingent
upon approval of the subsequent budget amendment.
Recommendation: Authorize Staff to execute the PSA with CDM Smith for an amount not to
exceed $30,000.
Community Heat Recovery Expansion Feasibility Study
February 14, 2012
Page 2 of 2
Attachments:
Attachment A — PSA with CDM Smith for Avon Community Heat Recovery Expansion Feasibility
Study
Town Manager Comments:
0 Page 2