1-Professional Services Agreement-SAMPLE 9.27.24.pdf

9/27/2024

AGREEMENT FOR PROFESSIONAL SERVICES

THIS AGREEMENT FOR PROFESSIONAL SERVICES (this “Agreement”) is made and entered into this ___________________________, by and between the Town of Parker, a Colorado home rule municipality (the “Town”), and ____________________________, a ____________________ (the “Consultant”).

RECITALS:

A. The Town requires professional services for the provision of _______________________________, as more fully described in the Scope of Services, attached hereto as Exhibit A.

B. The Consultant is qualified and is ready and willing to perform in accordance with the terms and conditions of this Agreement.

AGREEMENT:

NOW, THEREFORE, for and in consideration of the covenants and conditions set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Town and the Consultant agree as follows:

1. INCORPORATED DOCUMENTS. The “Agreement Documents” shall consist of:

(a) This Agreement;

(b) The Scope of Services, attached hereto as Exhibit A;

(c) The Consultant’s Rate Sheet, attached hereto as Exhibit B;

(d) The Town’s Insurance Requirements, attached hereto as Exhibit C; and

(e) The Consultant’s Certificate of Insurance, attached hereto as Exhibit D, all of which are incorporated herein by this reference, whether or not attached hereto. In the event of any conflicts between this Agreement and any referenced or attached documents, this Agreement shall control.

2. SCOPE OF SERVICES. Consultant shall furnish all labor and materials to perform the services required for the complete and prompt execution and performance of all duties, obligations and responsibilities, which are described or reasonably implied from the Agreement Documents (the “Services”). No adjustment or modification of the Agreement Documents shall be allowed for any misunderstanding of the Services or of the terms and provisions contained in the Agreement Documents.

3. CONFIDENTIALITY. During the course of Consultant’s performance of the Services, Consultant may have access to certain confidential and proprietary information owned by the Town that may be disclosed to Consultant and Consultant’s employees, agents, representatives, assigns, or subcontractors orally, in writing, or by observation. All such information disclosed to Consultant or Consultant’s employees shall be maintained in strict confidence, shall not be used except as necessary for the performance of the Agreement, and shall not be disclosed to any third party without prior written approval of the Town unless required under the Colorado Open Records Act or other law. All tangible items or material developed by or made available to Consultant or Consultant’s employees, agents, representatives, assigns, or subcontractors hereunder shall be delivered to the Town promptly upon the cancellation, termination, or completion of this Agreement.

4. OWNERSHIP OF DOCUMENTS/DELIVERABLES.

(a) Town Documents and Deliverables. Any data, documents, or other things or information provided by the Town to the Consultant or to which the Consultant has access during the performance of the Services (the “Town Documents”) and any reports, drawings, results, conclusions of the Services or other writings or products produced by the Consultant (the “Deliverables”) shall be and remain the sole property of the Town at all times; and the Consultant shall not use any of the Deliverables or Town Documents for any other purpose.

The Town shall retain all right, title, and interest in and to both the Town Documents and the Deliverables. The Consultant shall provide to the Town all of the Deliverables and return all Town Documents upon the date the Services are complete or upon the expiration or termination of this Agreement, whichever comes earliest. The Consultant shall not disclose to any third party any Town Document or Deliverable without the prior written approval of the Town unless required under the Colorado Open Records Act or other law.

Upon completion of the Services, and upon written request from the Consultant, the Town may, in its sole discretion, grant the Consultant a perpetual, worldwide, nonexclusive license to any of the Town Documents or Deliverables incorporated into the Services for the Consultant’s use and at Consultant’s expense. The Consultant shall make use of any licensed Town Documents or Deliverables, or information generated therefrom, at its own risk.

(b) Consultant Documents. The Town acknowledges that the Consultant’s pre-existing documents, data, or other information that may be incorporated into the Services are an instrument of professional service (“Consultant Documents”). Nevertheless, the Consultant hereby grants the Town a perpetual, worldwide, nonexclusive, irrevocable license to any of the Consultant Documents that are incorporated into the Deliverables.

5. COMPENSATION.

(a) Agreement Price. In consideration for the satisfactory completion of the Services, the Town shall pay the Consultant an amount not to exceed ________________ and 00/100 Dollars ($_____________) (the “Agreement Price”). Payment shall be made in accordance with the schedule of charges in _____________. The maximum Agreement Price specified herein shall include all fees and expenses incurred by the Consultant in performing all services hereunder. Except as expressly provided in the Agreement Documents, the Consultant shall not be entitled to reimbursement or payment for any travel, meals, entertainment, administrative or overhead (copies, telephone, supplies, etc.)

costs.

(b) Invoicing. The Consultant may submit invoices no more frequently than once per month that itemize the Services completed since the last invoice. The Consultant shall prepare the invoices at its sole cost and expense and shall include sufficient detail as determined by the Town to enable the Town to verify the appropriateness of the invoice. Invoices will be itemized and include the hourly breakdown for all personnel and other charges, and may be supplemented or accompanied by such supporting data as may be required by the Town.

The Town shall pay the uncontested amounts on each invoice within thirty (30) calendar days after the receipt and approval of the invoice. The Town has the right to ask for clarification on any Consultant invoice after receipt of the invoice by the Town.

(c) Invoices for Services Performed in a Prior Calendar Year. In no event shall the Consultant submit invoices to the Town more than forty-five (45) days after the beginning of a new calendar year for Services performed in the previous calendar year. The Town shall have no liability for payment of invoices submitted more than forty-five (45) days after the beginning of a new calendar year for Services performed in the previous year.

(d) Remedies for Nonpayment. In the event payment of uncontested amounts for any given invoice has not been made within ninety (90) days of the Town’s receipt of the invoice, the Consultant may, after giving seven (7) days’ written notice and without penalty or liability of any nature, suspend all authorized Services specified herein. In the event payment in full is not received within thirty (30) days of the Town’s receipt of the notice of nonpayment, the Consultant may terminate this Agreement. Upon receipt of payment in full for Services rendered, the Consultant will continue with all authorized Services and this Agreement shall resume as if no termination had occurred.

(e) Incorrect Payments. Incorrect payments to Consultant due to omission, error, fraud, or defalcation may be recovered from the Consultant by deduction from subsequent payments due to Consultant under this Agreement or other contracts between the Town and the Consultant.

6. NONAPPROPRIATION. Pursuant to C.R.S. § 29-1-110, as amended, the financial obligations of the Town as set forth herein after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise available. This Agreement is automatically terminated on January 1st of the first fiscal year for which funds are not appropriated. The Town’s fiscal year is currently the calendar year. The Town shall give the Consultant written notice of such nonappropriation.

7. TERM; COMMENCEMENT AND COMPLETION OF SERVICES.

(a) Term. The initial term of this Agreement shall commence upon full execution of the Agreement and shall continue through and including __________, 20___, unless earlier terminated as set forth herein. Thereafter, the Town shall have the sole option to renew this Agreement for four (4) additional one-year periods under the same terms and conditions of the original Agreement by issuance of an Extension Letter. If applicable, the Consultant shall send the Town notice of any requested changes in the rates set forth in Exhibit B or the Agreement Price at least sixty (60) calendar days prior to the end of the then-current term. If no notice is received, the rates from the previous term shall apply. If the Town accepts the changed rates or Agreement Price, it shall include such rates in the Extension

Letter. The Extension Letter shall be deemed an amendment to this Agreement.

Continuation of the Agreement beyond the initial period is a Town prerogative and not a right of the Consultant and will be exercised only when such continuation is clearly in the best interest of the Town. If the Consultant does not wish to extend the Agreement, it shall notify the Town no less than sixty (60) calendar days prior to the expiration of the then-current term.

(b) Period of Performance. The Consultant shall commence its performance of the Services upon full execution of this Agreement. If the Consultant is required to commence and complete the Services within a certain timeframe or on specific dates, that information shall be set forth in the Scope of Services. All time limits are of the essence in this Agreement.

No Services shall be performed by the Consultant until the Town has received acceptable certificates of insurance.

8. ENTIRE AGREEMENT. This Agreement is the entire Agreement between the Consultant and the Town, superseding all prior oral or written communications. None of the provisions of this Agreement may be amended, modified or changed, except as specified herein. A change in the Scope of Services or to the Agreement Price shall constitute a material change to this Agreement. No such change shall be effective or paid unless authorized by written amendment executed by the parties. Extension Letters, as discussed above, are deemed amendments to this Agreement so long as they satisfy the requirements set forth in the paragraph titled Term;

Commencement and Completion of Services. If the Consultant proceeds to perform the changed Services without written authorization, then the Consultant shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. For purposes of clarity, the terms and conditions of any Consultant invoice, time sheet, or other form, including but not limited to indemnification, limitation of liability, or cancellation fees, shall be void and of no effect against the Town notwithstanding any signatures on such form by a Town employee. The Consultant’s rights and obligations shall be solely governed by the terms and conditions of this Agreement and the Agreement Documents. Any Town employee’s signature on Consultant’s forms shall be effective only to establish receipt of services.

9. SECURITY AND ON-SITE PROCEDURES. [Paragraphs 9 and 10 are optional, depending on whether the Consultant staff will be on-site with access to Town facilities, including PD]

(a) Badging Requirements. At the option of the Town, all on-site personnel utilized by the Consultant who shall have access to non-public areas shall undergo background checks and/or will be issued Consultant badges displaying each individual’s photo ID. When badges are required, personnel utilized by the Consultant shall not be able to access the work site until he/she/they have been issued the badge that he/she/they shall be required to display at all times while working onsite. The Consultant shall be responsible for ensuring that the badge issued to a specific individual is strictly and exclusively worn by that individual. Badges shall under no circumstances be shared. At the discretion of the Town, random badge checks may be conducted. Individuals found without a badge or wearing a badge not issued to them shall immediately be removed from the job site. The Consultant shall be required to return to the Town all badges issued to the Consultant, its employees and agents, within 10 days of the expiration or termination of this Agreement (the “Return Date”). If the Consultant is unable to return all issued badges on or before the Return Date, then the Town will charge the Consultant $50 per missing badge which sum shall be deducted from any sum payable hereunder before final payment to the Consultant. The Consultant agrees to comply with all work schedule requirements set forth in the Agreement Documents.

(b) Secured Areas. For Services performed in secured areas, as determined by the Town in its sole discretion, including areas that may house confidential, criminal justice, and security information, the Town may implement additional security protocols such as signing Consultant staff in and out of the facility, or inventorying all tools and equipment used in the Services. If the Town requires background checks, it will approve all Consultant staff after a review of the background screening results, and will have the right to reject any Consultant staff member based on that individual’s criminal history. Continuous surveillance of the Services in these secured areas may be provided by the Town. These requirements are in addition to any requirements of the paragraph titled Criminal Justice Information Security.

10. CRIMINAL JUSTICE INFORMATION SECURITY. Before commencing performance of the Services, the Consultant shall be registered with the Colorado Bureau of Investigation’s Criminal Justice Information Systems (“CJIS”) Vendor Management Program. The Consultant shall remain registered with the CJIS Vendor Management Program for the duration of the performance of this Agreement and shall immediately cease work and notify the Town within twenty four (24) hours of its failure to remain registered. Any Consultant personnel who has access to the Town’s CJIS data, including all Consultant personnel providing Services at the Parker Police Department, must pass a CJIS background check and comply with all CJIS-mandated security training.

11. PROFESSIONAL RESPONSIBILITY/WARRANTIES. The Consultant represents and warrants that:

(a) It is qualified to assume the responsibilities and render the Services described herein and has all requisite corporate authority and professional licenses in good standing, as required by law.

(b) The Services performed by the Consultant shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of services in the applicable community;

provided that this warranty shall not abrogate any independent duty of care owed by the Consultant to the Town.

(c) The Consultant shall be responsible for the professional quality, technical accuracy, timely completion, and the coordination of all designs, drawings, specifications, reports, and other Services furnished by the Consultant under this Agreement. The Consultant shall, without additional compensation, correct or resolve any errors or deficiencies in its designs, drawings, specifications, reports, and other Services, which fall below the standard of professional practice, and reimburse the Town for costs caused by errors and omissions which fall below the standard of professional practice.

(d) Approval by the Town of drawings, designs, specifications, reports and incidental services or materials furnished hereunder shall not in any way relieve the Consultant of responsibility for technical adequacy of the Services. Neither the Town’s review, approval or acceptance of, nor payment for, any of the Services shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and the Consultant shall be and remain liable in accordance with applicable performance of any of the services furnished under this Agreement.

(e) Any methodologies or programs or other intellectual property utilized under this Agreement were independently developed by it or duly licensed from third parties and shall neither infringe upon nor violate any patents, copyrights, trade secrets, or other proprietary or intellectual property rights of a third party.

(f) The rights and remedies of the Town provided for under this Agreement are in addition to any other rights and remedies provided by law.

12. TOWN OF PARKER BUSINESS LICENSE. The Consultant agrees to obtain and maintain in good standing a Town of Parker Business License throughout the term of this Agreement, as well as any extensions issued under this Agreement.

13. INDEMNIFICATION. The Consultant shall indemnify, defend, and hold the Town and its officials and employees harmless from and against any and all claims, damages, losses, injuries, and expenses (including reasonable attorneys’ fees), relating to or arising out of: (1) any act or omission of the Consultant, its officers, employees, sub-contractors, or agents in connection with the performance of the Services; (2) any breach of a covenant, representation, or warranty made by the Consultant under this Agreement; (3) use by the Consultant of any intellectual property in connection with the Services (whether such intellectual property is owned by the Consultant or a third party) or the incorporation of the Consultant of any intellectual property into the Services; and (4) any workers’ compensation claims brought by an officer, employee, subcontractor, or agent of the Consultant relating to or arising out of such person’s performance of the Services. The Consultant need not indemnify, defend, and hold the Town and its officials and employees harmless from damages resulting from the negligence of the Town, its officials, or employees. The Town cannot, any by this Agreement does not, agree to indemnify, hold harmless, exonerate, or assume the defense of the Consultant or any other person or entity whatsoever, for any purpose whatsoever.

14. INSURANCE.

(a) Generally. The Consultant shall purchase and maintain such insurance in a company or companies licensed to do business in the State of Colorado as will protect it from claims which may arise out of or result from operations under the Agreement, whether such operations be by themselves or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The insurance required in this paragraph shall be written for not less than the amounts set forth in the Insurance Requirements attached hereto as Exhibit C. The Consultant shall not be relieved of any liability pursuant to the paragraph titled Indemnification by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. The

Consultant shall provide certificates evidencing such coverage to the Risk Manager prior to commencing the Services and during the term of this Agreement shall provide the Town written evidence of continuing insurance coverage prior to the expiration of the current coverage term. Should the Town request written evidence of continuing insurance coverage, such shall be provided to the Town within three (3) business days of its receipt of the request. The Consultant shall provide the Town no less than thirty (30) days’ prior written notice of any proposed change to, or cancellation of the insurance coverage, including all policy renewal information. Any proposed change to the insurance coverage shall comply with the terms of this Agreement. Any deviations below the insurance standards set forth above must be approved by the Town of Parker Risk Manager. Should the Consultant not have prior notice of a change or cancellation to the insurance coverages, the Consultant shall notify the Town no later than two (2) business days after the Consultant receives notice of a change in or cancellation of coverage.

(b) Endorsement. The Consultant shall request that its Commercial General Liability insurance policy be endorsed to the Town. If requested by the Town, the Consultant shall request from its insurance company an endorsement to any other insurance policy for this Contract, in a form approved by the Town Attorney’s Office, which will require the insurance company to provide the Town with notice of cancellation of the policy. The Consultant shall promptly comply with all terms of the endorsement and shall pay the cost of the endorsement.

(c) Certificate of Insurance. All certificates of insurance and guarantees required by this Agreement shall be submitted by the Consultant to the Town prior to commencement of the Services. Within a reasonable time after submittal, the Town shall either approve the certificates of insurance or notify the Consultant of any unacceptable conditions stating the specific reasons therefor. The Consultant shall promptly re-submit an acceptable certificate of insurance, which the Town shall review within a reasonable time. The Consultant shall not commence any of the Services until all required certificates of insurance have been accepted by the Town.

(d) Breach. Failure on the part of the Consultant to procure or maintain policies providing the required coverages, conditions and minimum limits shall constitute a material breach of contract upon which the Town may immediately terminate this Agreement or, at its discretion, the Town may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the Town shall be repaid by Consultant to the Town upon demand, or the Town may offset the cost of the premiums against any monies due to Consultant from the Town.

Any termination of this Agreement, does not relieve the Consultant from indemnification during the period this Agreement was in effect.

(e) Governmental Immunity. Notwithstanding any other provision to the contrary, no term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection or other provisions of the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as now or hereafter amended. The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the Town, its officials and employees is controlled and limited by the provisions of Section 2-10-101 et seq., C.R.S., as now or hereafter amended.

15. NONASSIGNMENT; SUBCONTRACTORS; PERSONAL SERVICES. The Consultant shall not assign this Agreement or employ any subcontractor without the prior written consent of the Town. The Consultant shall be responsible for the acts and omissions of its agents, employees, and subcontractors. The Consultant shall bind each subcontractor to the terms of this Agreement, and require or provide insurance coverage for each subcontractor as will protect them from claims which may arise out of or result from operations under this Agreement, in accordance with the terms of the paragraph titled Insurance. This Agreement is voidable by the Town and the Town may terminate this Agreement if the Consultant assigns or subcontracts its performance of this Agreement without the prior written consent of the Town, which may be denied or conditioned in the sole discretion of the Town. Any such assignment or subcontracting without the Town’s prior written consent shall be a material breach of this Agreement. This Agreement may be a personal services agreement pursuant to which the Town intends to obtain the personal services of the individual designated in the Scope of Services whose knowledge, skills, and experience are deemed essential to the satisfactory performance of the Services (the “Key Personnel”). The Consultant shall not replace any of the Key Personnel unless (a) the Town requests a replacement, or (b) the Key Personnel is no longer employed with the Consultant and the Consultant finds a satisfactory substitute. The Town must approve all substitutes and, if no substitute is acceptable, the Town may terminate this Agreement. If this is a personal services agreement, such individual will be designated in the Scope of Services. Subject to these limitations, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and assigns.

16. TERMINATION. The Town reserves the right to terminate this Agreement in whole or in part, with or without cause, upon _____ (__) days’ written notice to the Consultant. In the event of termination, the Consultant shall incur no additional expenses and shall perform no further Services for the Town under this Agreement after the date of receipt of the notice of termination, unless otherwise specified by the Town. The Town shall pay the Consultant for all Services previously authorized and completed prior to the date of receipt of the notice of termination, and for other services required by the Town to be completed prior to termination and which are satisfactorily performed. In the event that the Town terminates this Agreement for cause, the provisions of the paragraph titled Damages shall apply.

17. DAMAGES. If the Consultant fails to comply with any material provision of the Agreement, the Consultant shall be liable for any and all damages, including without limitation, the cost of procuring similar supplies or services and all other costs and expenses incurred by the Town because of such failure. All time limits stated in this Agreement are of the essence. The Consultant’s failure substantially to complete the Services in conformance with this Agreement shall result in damages suffered by the Town including, without limitation, the Town’s cost to complete the Services together with any other expenses incurred, as determined by the Town.

The Town may offset any amounts owed to it as damages against any monies due and owing to the Consultant under this Agreement. In addition, the Town shall be entitled to any other rights and remedies available to it in law or equity.

18. FORCE MAJEURE.

(a) Force Majeure Event. Any delay or failure in the performance by either party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure Event. For purposes of this Contract, Force Majeure Event shall mean a cause or event that: a) is not reasonably foreseeable, b) is not otherwise caused by or under the reasonable control of the party claiming a Force Majeure Event, c) could not reasonably have been expected to be taken into account at the time of contract formation, d) cannot reasonably be prevented, avoided, delayed, or mitigated despite the reasonable efforts of the nonperforming party, and e) materially affects a party’s ability to perform. Force Majeure Events are events which meet the five-part test set forth in this section, and may include, without limitation, acts of god, natural disasters, civil or military disturbances, explosions, riots, wars, sabotage, terrorism, epidemics and pandemics, breakdown of communication facilities, injunctions, or labor strikes. For the avoidance of doubt, Force Majeure Event shall not include (a) financial distress or the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, (c) a party’s financial inability to perform its obligations hereunder, or (d) the nonperformance or delay of a subcontractor.

(b) Duties of Party Claiming a Force Majeure Event. Upon the occurrence of a Force Majeure Event, the nonperforming party will promptly provide the other party with written notice that it is claiming a Force Majeure Event, along with a description of the event, the anticipated effect on performance, and the expected duration of the event’s effect on the claiming party. The nonperforming party shall furnish the other party with periodic reports regarding the progress of the Force Majeure Event. The nonperforming party shall use reasonable diligence to minimize damages and to resume performance.

19. CONFLICT OF INTEREST.

(a) Personal or Private Interests. The Consultant shall disclose any personal or private interest related to property or business within the Town. Upon disclosure of any such personal or private interest, the Town shall determine if the interest constitutes a conflict of interest. If the Town determines that a conflict of interest exists, the Town may treat such conflict of interest as a default and terminate this Agreement.

(b) Services to Others. The Consultant shall refrain from providing services to other persons, firms or entities that would create a conflict of interest for the Consultant with regard to providing services pursuant to this Agreement.

(c) Constitutional Provisions. The Consultant shall not offer or provide anything of benefit to any Town official or employee that would place the official or employee in a position of violating the public trust in violation of Chapter 2.05 of the Parker Municipal Code or

Resolution No. 06-101, Reaffirming and Adopting Standards of Conduct and Ethics Concerning Town Officials, Employees and Independent Contractors.

20. INDEPENDENT CONTRACTOR STATUS; PAYMENT OF TAXES AND

UNEMPLOYMENT INSURANCE. The Consultant is an independent contractor and is not an agent, servant, or employee of the Town. The Consultant and its employees are not entitled to workers’ compensation benefits through the Town. The Consultant is solely responsible for necessary and adequate workers’ compensation insurance and shall be responsible for withholding and paying all federal and state taxes. The Consultant and its employees are not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by an entity other than the Town. The Consultant hereby acknowledges full and complete liability for and timely payment of all local, state, and federal taxes imposed including, without limitation, tax on self-employment income, unemployment taxes, and income taxes.

21. NOTICES.

(a) Key Notices. “Key Notices” under this Agreement are notices regarding Agreement default, contractual dispute, or termination of the Agreement. Key Notices shall be given in writing and shall be deemed received if given by: (i) electronic mail (as set forth in subsection (b) below) when transmitted, if transmitted on a business day and during normal business hours of the recipient, and otherwise on the next business day following transmission; (ii) certified mail, return receipt requested, postage prepaid, three (3) business days after being deposited in the United States mail; or (iii) overnight carrier service or personal delivery, when received. For Key Notices, the parties will follow up any electronic mail with a hard copy of the communication by the means described in subsection (a)(ii) or (a)(iii) above. The requirement for following up a Key Notice made by electronic mail with a hard copy shall be deemed waived by the receiving party upon acknowledgement, via electronic mail, within three business day of transmission of the Key Notice, that the Key Notice has been received. All other communications or notices between the parties that are not Key Notices may be done via electronic mail. Notice shall be given to the parties at the following addresses:

To the Town:

and (send to all) Town of Parker

Attn: Procurement Division 20120 E. Mainstreet Parker, Colorado 80138 procurement@parkerco.gov

Town of Parker Attn: Legal/Town Attorney 20120 E. Mainstreet Parker, Colorado 80138 contracts@parkerco.gov

To the Consultant:

All Key Notices to the Town shall include a reference to the Agreement, including the Consultant’s name and the date of the Agreement.

(b) Electronic Mail. The parties agree that: (i) any notice or communication transmitted by electronic mail shall be treated in all manner and respects as an original written document;

(ii) any such notice or communication shall be considered to have the same binding and legal effect as an original document; and (iii) at the request of either party, any such notice or communication shall be re-delivered or re-executed, as appropriate, by the party in its original form. The parties further agree that they shall not raise the transmission of a notice or communication, except for Key Notices, by electronic mail as a defense in any proceeding or action in which the validity of such notice or communication is at issue and hereby forever waive such defense. For purposes of this Agreement, the term “electronic mail” means email.

22. MISCELLANEOUS.

(a) Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in the County of Douglas, State of Colorado.

(b) Compliance With Law. The Services to be performed by the Consultant hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations that affect the Consultant or those employed or engaged by it, the materials or equipment used, and the performance of the Services. The Consultant shall procure all necessary approvals, licenses, and permits at its own expense.

(c) Public Health Orders. The Consultant shall abide by any local, state, and federal health orders in effect or instituted during the term of this Agreement. Failure to abide by such requirements may result in termination of the Agreement.

(d) Nondiscrimination. The Consultant shall not refuse to hire, discharge, promote or demote, or discriminate in matters of compensation against any person otherwise qualified solely because of race, creed, sex, color, national origin or ancestry, religion, disability, age, sexual orientation, gender identity, veteran status, or any other basis prohibited by federal, state, or local law.

(e) Waiver. This Agreement or any of its provisions may not be waived except in writing by a party’s authorized signatory. The failure of a party to enforce any right arising under this Agreement on one or more occasions will not operate as a waiver of that or any other right on that or any other occasion. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligations of this Agreement.

(f) Severability. If any provision of this Agreement or the application thereof to any person or in any circumstance shall be unenforceable to any extent, the remainder of this Agreement and the application of such provision to other persons or in other circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

(g) Survival. Notwithstanding anything to the contrary, the parties understand and agree that all terms and conditions of this Agreement that require continued performance or compliance beyond the termination or expiration of this Agreement, including without limitation the indemnification and warranty provisions, shall survive such termination or expiration and shall be enforceable against a party if such party fails to perform or comply with such term or condition.

(h) Sales Tax Exemption. The Consultant will not be required to pay Colorado State sales and use taxes for the Services. The Consultant may obtain a sales tax exemption permit from the State of Colorado, Department of Revenue, if necessary, to obtain materials for the Services without the payment of Colorado State sales and use tax.

(i) No Third-Party Beneficiaries. The enforcement of this Agreement and all rights of action relating to such enforcement shall be strictly reserved to the Town and the Consultant.

Nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other third person, nor shall anything contained in this Agreement be construed as a waiver of any provision of the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et. seq., as amended. It is the express intention of the Town and the Consultant that any such person or entity, other than the Town and the Consultant, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only.

(j) Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. §§24-71.3-101 to -121.

(k) Signature Authority. The individual signing this Agreement on behalf of the Consultant represents and warrants to the Town that he/she/they have full authority to enter into this Agreement on behalf of the Consultant and to bind Consultant to the terms and conditions of this Agreement.

[Remainder of page intentionally left blank. Signatures on following page.]

IN WITNESS WHEREOF, this Agreement is executed by the parties hereto as of the date first written above.

TOWN OF PARKER, COLORADO

By: ____________________________________

Date: ____________________________________

ATTEST:

Chris Vanderpool, Town Clerk

APPROVED AS TO FORM:

Town Attorney’s Office

APPROVED AS TO FORM AND SUFFICIENCY

AS TO SECTIONS 13 AND 14:

Human Resources/Risk Management

CONSULTANT:

By: ____________________________________

Name, Title

Date: ____________________________________

EXHIBIT A

Scope of Services

1. Scope of Services. The Consultant hereby agrees to and accepts responsibility to perform the following Services:

In the event of any conflicts between this Agreement and any referenced solicitation documents, this Agreement shall control.

2. Time of Performance. The services of the Consultant shall commence (choose one):

As of the date of this Agreement.

As specified in a Notice to Proceed to be provided by the Town.

As of the following date: .

The services of the Consultant shall be completed, or shall end by or before

3. Additional Insurance Requirements.

Waiver of Workers’ Compensation Insurance Requirements. Check box for Sole Proprietors only.

A Waiver of Workers’ Compensation Insurance is required only when a Consultant is a sole proprietor and has no employees. This form must be requested from Legal.

4. Other Requirements.

Consultant may provide its W-9 by sending it to Procurement@parkerco.gov through an encrypted email, by sending it through the mail, or by delivering it in person. BY

SIGNING THIS AGREEMENT, THE CONSULTANT ACKNOWLEDGES THAT IF THE

CONSULTANT’S NAME LISTED ON THIS AGREEMENT DOES NOT MATCH THE

NAME ON THE W-9 SUBMITTED TO THE TOWN, THAT THIS MAY DELAY

PAYMENT TO THE CONSULTANT, AND SHALL NOT BE DEEMED A BREACH OF

THIS AGREEMENT BY THE TOWN.

5. Special Conditions.

No special conditions mailto:Procurement@parkerco.gov

Special Conditions are as follows:

6. Personal Services Contract.

No

Yes. Key Personnel:

EXHIBIT B

Consultant’s Rate Sheet

EXHIBIT C

Insurance Requirements

I Prior to the commencement of any Services, the Consultant shall forward their certificate of insurance to the Town’s Risk Manager at RiskManagement@parkerco.gov

II The Certificate Holder must be:

Town of Parker, Colorado 20120 E. Mainstreet Parker, Colorado 80138

III The Town of Parker must be added as an additional insured to general liability, automotive liability, and any excess liability policies.

IV Minimum Insurance Requirements Minimum Coverage Workers’ Compensation – statutory limits provided by an insurance carrier that is licensed to do business in Colorado.

The policy shall contain a Waiver of Subrogation on behalf of the Town of

Parker.

Evidence of qualified self-insured status may be substituted for the workers’ compensation requirements.

Employer’s Liability $500,000 each accident $500,000 disease policy limit $500,000 disease each employee

Commercial General Liability – on an Occurrence Form The policy must not exclude or reduce coverage for mobile equipment, personal injury, property damage, blanket contractual, independent contractor and death.

Personal injury coverage must have the employee exclusion deleted.

The policy shall contain a Waiver of Subrogation on behalf of the Town of

Parker

$1 million each occurrence $2 million general aggregate

All deductibles or self-insured retentions (“SIRs”) in excess of $5,000 must be listed on the certificate of insurance

The insurance requirements specified by the Town shall remain in effect for the full term of the Agreement and any extension thereof. Updated certificates of insurance shall be sent to the Town as necessary during the term of the Agreement and prior to any extension thereof.

The Town reserves the right to reject any insurer it deems not financially acceptable on insurance industry resources. Property and liability insurance companies shall be licensed or approved to do business in Colorado and shall have an A.M. Best rating of not less than A-/VII. Additionally, the Town reserves the right to reject any insurance with relatively large deductibles or SIRs, deemed by the Town to pose too high of a risk based on the size of the Consultant, financial status or rating of the Consultant, or based on the size or type of the project and the exposure.

Any deviations below the standards given above must be approved by the Town of Parker’s Risk Manager.

V Any subcontractors must meet the same insurance requirements for the Agreement unless the Risk Manager has approved a deviation in writing.

mailto:RiskManagement@parkerco.gov

EXHIBIT D

Consultant’s Certificate of Insurance