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04-24-2012 Agreement Karen Rinehart, Video of Nottingham Power Plant DocumentaryTOWN OF AVON PROFESSIONAL Independent Contractor Lump Not to Exceed Total Project/Services Name: Nottingham Power Plant Documentary Video THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and between, KAREN RINEHART ( "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." 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: 1.1 Services. As directed by and under the supervision of the Town Manager for the Town of Avon, the Contractor shall provide the Town with the services described in Exhibit A (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 Nottingham Power Plant video April 24, 2012 Page 1 of 12 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 Proiect Schedule. The following is a list of anticipated milestone dates for the Project: ® Notice to Proceed — April 24, 2012 ® Video Work Complete — August 31, 2012 ® Project Completion — October 31, 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. Nottingham Power Plant Video April 24, 2012 Page 2 of 12 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. Lump Sum Contract — Not to Exceed Amount. The Contractor shall perform the Services and shall invoice the Town for work performed based on a lump sum price not to exceed $3,400. 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. The reimbursable expenses must be included in the lump sum cost of the work. ® 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 sub - consultant fees C. Non - reimbursable Costs, Charges, Fees, or Other Expenses. Any fee, cost, charge, 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. Nottingham Power Plant Video April 24, 2012 Page 3 of 12 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. 3.1 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. Nottingham Power Plant video April 24, 2012 Page 4 of 12 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. 4.1 Term. This Agreement shall be effective on April 24, 2012 at 12:01 a.m., ( "Effective Date ") and shall terminate at 11:59 p.m. on December 31, 2012, 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 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 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 Nottingham Power Plant video April 24, 2012 Page 5 of 12 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 shall 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 4.4, nothing in this 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. 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 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. 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. 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. Nottingham Power Plant video April 24, 2012 Page 6 of 12 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 H. 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 negligent performance, Contractor shall bear 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. + F. -MAA> 1 � • . • :x 8.1 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. 8.2 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 Nottingham Power Plant Video April 24, 2012 Page 7 of 12 agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 8.3 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. 8.4 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 8.4 shall not authorize assignment. 8.5 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. 8.6 Article X Section 20 /TABOR: The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi - fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 8.7 Governing Law, Venue, and Enforcement: This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for Nottingham Power Plant Video April 24, 2012 Page 8 of 12 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. 8.8 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. 8.9 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 Applicant from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 8.10 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. 8.11 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. 8.12 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. 8.13 Incorporation of Exhibits: Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be Nottingham Power Plant video April 24, 2012 Page 9 of 12 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. 8.14 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 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. 8.15 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 Nottingham Power Plant Video April 24, 2012 Page 10 of 12 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. 8.16 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. 8.17 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 to the Town, the Contractor shall be generally liable for the difference between what "correct" construction will cost and what it would have cost had the drawings, specifications, et al, been correct. This includes tear -out 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. 8.18 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. Nottingham Power Plant Video April 24, 2012 Page 11 of 12 If to the Town: If to the Contractor: Town Manager Karen Rinehart Town of Avon Po Box 1385 P.O. Box 975 Buena vista, Colorado 81211 Avon, Colorado 80620 krl@me.com (electronic) With Copy to: Eric J. Heil, Town Attorney Heil Law and Planning, LLC 2696 South Colorado Blvd., Suite 550 Denver, CO 80222 W4111111154U go] F-11 111111111:2 O.Tellyj &] 1540 U The following attachments are included and made a part of this Agreement: Exhibit A: Scope of Services gl 411 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. THIS AGREEMENT is executed and made effective as provided above. It tihYJ ii, to] WAYFLO7r1 NMi ki7:7_Ti7�7 By. Lj� 3 ly�c ny, J.m Manager Nottingham Power Plant Video April 24, 2012 Page 12 of 12 I �co�oR� °o 2 7 rev wee, V `-i q -f J _ I erine Mythenerine Mythen, D puty Town Name: Karen Rinehart The Contractor will provide services to meet the following scope of work. ® Producing, writing and editing the documentary ® 40 hours of editing time, minimum ® 12 producer hours /research ® 10 more hours of shooting, including interviews with at least 3 "key" family members and individuals involved with the rehabilitation efforts ® 10 hours of handling all still photos, preparing for video ® Incorporate and credit Channel 5 video footage a 4 hours for graphics ® 8 hours to write narration a Obtain narrator (estimated $150) ® Acquire licensed music (estimated $300) ® 2 hours for DVD creation /authoring ® 10 to 12 minutes long video a Provide ten (10) hard DVD copies and digital file suitable for uploading to website Nottingham Power Plant Video Exhibit A: Scope of Services Page 1 of 1