Exhibit A_Architect or Engineer Agreement Template.docx

AGREEMENT TO FURNISH {---Agreement to Furnish...---} SERVICES TO THE CITY OF WESTMINSTER FOR {---Contract For... (Title)---}

THIS AGREEMENT, made and entered into {---Contract Effective Date---}, between the CITY OF WESTMINSTER, hereinafter called the “City,” and {---Company Name---}, a {---Vendor Entity Type---} organized pursuant to the laws of the State of {---Vendor State of Organization---} hereinafter called the “Consultant,” is as follows:

WHEREAS, the City wishes to {---Whereas, the City wishes to...---}; and

WHEREAS, the City desires to engage the Consultant to render the professional {---Agreement to Furnish...---} services described in this Agreement and the Consultant is qualified and willing to perform such services; and

WHEREAS, sufficient authority exists in City Charter and state statute, sufficient funds have been budgeted for these purposes and are available, and other necessary approvals have been obtained.

NOW, THEREFORE, in consideration of the mutual understandings and agreements set forth, the City and the Consultant agree as follows:

I. THE PROJECT

The Project consists of {---Scope Of Work---}, as more specifically described in Appendix A, attached hereto and incorporated herein by this reference (hereinafter, the “Project.”)

II. CONSULTANT'S SERVICES AND RESPONSIBILITIES

The Consultant agrees that it will furnish all of the technical, administrative, professional, and other labor; all supplies and materials, equipment, printing, vehicles, local travel, office space and facilities, testing and analyses, calculations, and any other facilities or resources necessary to complete the Project.

III. ADDITIONAL SERVICES

When authorized in writing by the City and subject to separate written agreement as to additional compensation for additional services, the Consultant agrees to furnish or obtain from others additional professional services in connection with the Project due to changes in the scope of the Project or its design. Any requests for additional services shall be made in writing by Consultant to the City within sixty (60) days of beginning the work that constitutes additional services.

IV. CONSULTANT'S FEE

{--rmc--Lump Sum--rmc--}{--rmc--Hourly or Scheduled Rates--rmc--}

V. COMMENCEMENT & COMPLETION OF PROJECT

The Consultant understands and agrees that time is an essential requirement of this Agreement. The Project shall be completed as soon as good practice and due diligence will permit. In any event, the Project shall be completed within {---Project Complete Time---} after the Consultant receives notice to proceed, exclusive of time lost or due to delays beyond the control of the Consultant.

VI. TERMINATION

This Agreement shall terminate at such time as the Project is completed and the requirements of this Agreement are satisfied, or upon the City’s providing Consultant with seven (7) days advance written notice, whichever occurs first. In the event the Agreement is terminated by the City’s issuance of said written notice of intent to terminate, the City shall pay Consultant for all work previously authorized and completed prior to the date of termination plus any services the City deems necessary during the notice period. Said compensation shall be paid upon the Consultant's delivering or otherwise making available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the Consultant in performing the Project included in this Agreement, whether completed or in progress.

VII. INSURANCE

During the course of the Project, the Consultant shall maintain Workers’ Compensation Insurance in accordance with the Workers’ Compensation laws of the State of Colorado. Consultant shall maintain an Automobile Liability policy of $500,000 per person/$1,000,000 per occurrence and a Commercial General Liability policy of $1,000,000 per person/$2,000,000 per occurrence; or alternatively, Consultant shall maintain an Automobile Liability policy and a Commercial General Liability policy each with a $2,000,000 per occurrence combined single limit. The City shall be named as an additional insured under the Consultant's Automobile and Commercial General Liability coverages, providing that such insurance is primary with respect to claims made by the City. These coverages shall be occurrence-based policies, and shall specifically provide that all coverage limits are exclusive of costs of defense, including attorney fees. The Consultant shall provide certificates of insurance to the City indicating compliance with this paragraph. It shall be an affirmative duty of the Consultant to notify the City in writing within two (2) days of the cancellation of or substantive change to any insurance policy set out herein, and failure to do so shall be a breach of this Agreement.

The Consultant shall procure and maintain in full force and effect for the period set forth herein an Errors and Omissions policy, or other Professional Liability Insurance policy acceptable to the City, with a minimum two million dollars ($2,000,000.00) coverage per claim and two million dollars ($2,000,000) in the aggregate, but in any event sufficient to cover the Consultant’s potential liability under paragraph X(D) below. The Consultant shall maintain and keep in effect such insurance coverage for the period of the Colorado statute of repose pertaining to the professional services contemplated by this Agreement. The policy shall cover claims, damages, losses, and expenses resulting from the performance of the professional services under this Agreement. The policy shall have a deductible not in excess of twenty-five thousand dollars ($25,000) self-insured unless a greater amount has been approved by the City in writing. Before starting any work on the Project, the Consultant shall submit to the City a Certificate of Insurance verifying such coverage. The Consultant shall also provide to the City any notices of renewals of such policy, as such renewals occur, for a period of three years after Substantial Completion of the Work or portion(s) of Work as set forth in this Agreement.

VIII. COMPLIANCE WITH FEDERAL LAW

A. Equal Employment Opportunity. In connection with performance under this Agreement, the Consultant shall not unlawfully discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, sex, immigration status, gender identity or expression, sexual orientation, national origin, or disability. Such actions 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. Consultant represents that it will require a similar affirmation of nondiscrimination in any contract it enters into with a subcontractor as part of the execution of this Agreement.

B. To the extent applicable under federal law, Consultant shall ensure the Project complies with Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., by incorporation into the Project, where appropriate, the 2010 ADA Standards for Accessible Design published by the U.S. Department of Justice, dated September 15, 2010, as may be amended from time to time.

IX. PROHIBITED INTEREST

A. The Consultant agrees that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. The Consultant further agrees that in the performance of the Agreement, no person having any such interests shall be employed.

B. No official or employee of the City shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.

X. GENERAL PROVISIONS

A. Independent Contractor. In the performance of the Project, the Consultant shall act as an independent contractor and not as agent of the City except to the extent the Consultant is specifically authorized to act as agent of the City.

B. Books and Records. The Consultant's books and records with respect to the Project and reimbursable costs shall be kept in accordance with recognized accounting principles and practices, consistently applied, and will be made available for the City's inspection at all reasonable times at the places where the same may be kept. The Consultant shall not be required to retain such books and records for more than three (3) years after completion of the Project.

C. Ownership of Drawings. All plans, drawings, specifications and the like relating to the Project shall be the joint property of the City and Consultant. Upon completion of the Project, or at such other time as the City may require, the Consultant shall deliver to the City a complete corrected set of drawings, in hard copy and in an electronic format acceptable to the City, and such additional copies thereof as the City may request, corrected as of the date of completion of the Project.

D. Responsibility; Liability.

1. Professional Liability. The Consultant shall exercise in its performance of the Project the standard of care adhering to the best practices and knowledge within their profession, including following applicable building codes and regulations, while prioritizing the safety and welfare of the public. Consultant shall exercise at least the standard and quality of care prevailing among recognized design professionals of expert knowledge and skill in Colorado under similar conditions at the same time and locality of the Project. The Consultant shall be liable to the City for any loss, damages or costs incurred by the City for the repair, replacement or correction of any part of the Project which is deficient or defective as a result of any failure of the Consultant to comply with this standard.

2. Indemnification. To the fullest extent permitted by law and except for all professional liability claims, damages, losses, and expenses, the Consultant shall indemnify, defend, and hold harmless the City and its agents and employees from and against all claims, damages, losses, and expenses, including but not limited to attorneys' fees, arising out of or resulting from the performance of the Project, but only to the extent caused by the negligent act or omission of, or breach of contract by, the Consultant, any subcontractor of the Consultant, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable.

To the fullest extent permitted by law, the Consultant shall indemnify and hold harmless the City and its agents and employees from and against all professional liability claims, damages, losses, and expenses, including but not limited to attorneys' fees, arising out of or resulting from the performance of the Project, but only to the extent caused by the negligent act or omission of, or breach of contract by, the Consultant, any subcontractor of the Consultant, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable. The Consultant further agrees to indemnify and hold harmless the City and City’s agents and employees against all claims, damages, losses, and expenses, including but not limited to attorneys' fees arising out of the City’s implied warranty of the adequacy of the design and plans prepared by the Consultant.

Such obligations shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this paragraph D(2). The City may, if it so desires, withhold the payments due the Consultant so long as shall be reasonably necessary to indemnify the City on account of such injuries.

In any and all claims against the City or any of its agents or employees by any employee of the Consultant, any subcontractor of the Consultant, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligations under this paragraph D(2) shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Consultant or any subcontractor under the workers' compensation acts, disability benefit acts, or other employee benefit acts.

E. Communications. All communications relating to the day-to-day activities for the Project shall be exchanged between the respective Project representatives of the City and the Consultant who will be designated by the parties promptly upon commencement of the Project.

All other notices and communications in writing required or permitted hereunder shall be delivered personally to the respective representatives of the City and the Consultant set forth below or shall be mailed by registered mail, postage prepaid, return receipt requested to the parties at their addresses shown herein. Notices hereunder shall be effective three (3) days after mailing.

F. Assignment. The Consultant shall not assign this Agreement in whole or in part, including the Consultant's right to receive compensation hereunder, without the prior written consent of the City; provided, however, that such consent shall not be unreasonably withheld with respect to assignments to the Consultant's affiliated or subsidiary companies, and provided, further, that any such assignment shall not relieve the Consultant of any of its obligations under this Agreement. This restriction on assignment includes, without limitation, assignment of the Consultant's right to payment to its surety or lender.

G. Applicable Laws and Venue. This Agreement shall be governed by the laws of the State of Colorado and the Charter of the City of Westminster. This Agreement shall be deemed entered into in both Adams County and Jefferson County, State of Colorado, as the City is located in both counties. At the City’s option, the location for settlement of any and all claims, controversies and disputes arising out of or related to this Agreement or any breach thereof, whether by alternative dispute resolution or litigation, shall be proper only in either county.

H. Remedies. Consultant agrees that the economic loss rule as set forth in Town of Alma v. Azco Construction, Inc., 10 P.3d 1256 (Colo. 2000) shall not serve as a limitation on the City’s right to pursue tort remedies in addition to other remedies it may have against Consultant. Such rights and remedies shall survive the Project or any termination of this Agreement.

I. Entire Agreement. This Agreement shall constitute the entire agreement between the parties hereto and shall supersede all prior contracts, proposals, representations, negotiations and letters of intent, whether written or oral, pertaining to the Project. To the extent there is any conflict between the terms of this Agreement and the terms of an attachment hereto, this Agreement shall control.

J. Subcontracting. Except subcontractors clearly identified and accepted in the Consultant's Proposal, Consultant may employ subcontractors to perform the Project only with City's express prior written approval. Consultant is solely responsible for any compensation, insurance, and all clerical detail involved in employment of subcontractors.

K. Enforcement of Agreement. In the event it becomes necessary for either party to bring an action against the other to enforce any provision of this Agreement, in addition to any other relief that may be granted, the prevailing party in such action shall be entitled to an award of its reasonable attorney fees as determined by the Court.

L. Withholding Payments. Notwithstanding any other remedial action by the City, Consultant shall remain liable to the City for any damages sustained by the City by virtue of any breach under this Agreement by Consultant or any subcontractor. The City may withhold any payment to Consultant for the purpose of mitigating the City’s damages, until such time as the exact amount of damages due to the City from the Consultant is determined. The City may withhold any amount that may be due Consultant as the City deems necessary to protect the City against loss, including loss as a result of outstanding liens, claims of former lien holders, or for the excess costs incurred in procuring similar goods or services. The City’s decision to withhold payment to investigate suspected non-performance or breach by Consultant or any subcontractor, and such withholding of payment to investigate in good faith, does not constitute a default or breach under this Agreement. Contractor shall be liable for excess costs incurred by the City in procuring from third parties replacement Work as cover.

M. Authorization. The person or persons signing and executing this Agreement on behalf of each Party, do hereby warrant and guarantee that he/she or they have been fully authorized to execute this Agreement and to validly and legally bind such Party to all the terms, performances and provisions herein set forth.

N. Digital Signatures and Copies. The Parties hereby acknowledge that this Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties agree that signature pages may be executed via ink signature or electronic mark and the executed signature pages may be delivered using pdf or similar file type transmitted via electronic mail, cloud-based server, e-signature technology or other similar electronic means. Further, the Parties acknowledge and agree that the original of this Agreement, including the signature page, may be scanned and stored in a computer database or similar device, and that any printout or other output readable by sight, the reproduction of which is shown to accurately reproduce the original of this Agreement, may be used for any purpose as if it were the original, including proof of the content of the original writing.

O. Personal Identifiable Information Policy. If Consultant handles Personal Identifiable Information (PII) as part of the Project, it is required to comply with the applicable requirements of C.R.S. §§ 24-73-101, et seq and submit a PII policy to the City upon request. PII includes any representation of information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means. Further, PII is defined as information: (i) that directly identifies an individual (e.g., name, address, social security number or other identifying number or code, telephone number, email address, etc.) or (ii) by which an agency intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification. (These data elements may include a combination of gender, race, birth date, geographic indicator, and other descriptors). Additionally, information permitting the physical or online contacting of a specific individual is the same as personally identifiable information. This information can be maintained in either paper, electronic or other media.

P. Accessibility. To the extent the work product or any of Consultant’s services provided under the Agreement involves digital, technological components, including but not limited to software, websites, applications, digital documents (hereinafter “work product”), Consultant shall comply with and the work product provided under this Agreement shall be in compliance with all applicable provisions of C.R.S. §§24-85-101, et seq., and the Accessibility Standards for Individuals with a Disability, as established by the Governor’s Office Of Information Technology (OIT), pursuant to C.R.S. §24-85-103 (2.5), Any work product provided under this Agreement, regardless of whether it is meant to internal City use or external public use, shall comply with ADA and WCAG 2.1 conformance levels A and AA compliance(Standard ADA Compliance). Consultant shall indemnify, and hold harmless the City, its officers and employees, against any and all costs, expenses, claims, damages, liabilities, court awards and other amounts (including attorneys’ fees and related costs) incurred by any of the Indemnified Parties in relation to Consultant’s failure to comply with C.R.S. §§24-85-101, et seq., or the Accessibility Standards for Individuals with a Disability as established by the Office of Information Technology pursuant to Section C.R.S. §24-85-103 (2.5).

Q. This Agreement is expressly contingent upon the appropriation of funds by the City of Westminster's City Council for each fiscal year of the Agreement. In the event the Westminster City Council does not appropriate the funds for any fiscal year the Agreement is active, it will be treated as if the City had given its notice to terminate the Agreement in compliance with Article VI. As a result, nothing in this Agreement shall be deemed or construed as a multiple year fiscal obligation under the meaning of Colorado Constitution Article X, Section 20, also known as the TABOR Amendment. This Agreement is expressly contingent upon the approval of the City of Westminster's City Council of all the terms set forth herein. In the event this Agreement is not approved in its entirety by City Council, neither Party shall be bound to the terms of this Agreement.

INSURANCE CERTIFICATES REQUIRED BY THIS AGREEMENT SHALL BE SENT TO {---Department/Business Unit---} DEPARTMENT, ATTENTION: {---Employee First Name---} {---Employee Last Name---}.

REMAINDER OF PAGE INTENTIONALLY BLANK.

SIGNATURE PAGE FOLLOWS.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers on the date first appearing above.

{--rmc--Corporation Signature Block--rmc--}{--rmc--LLC or Individual Notary Signature Block--rmc--}

Address for giving notice: Address for giving notice:

Rev. 01/2023