2-Sample Agreement Attachment A 30SEPT2026.pdf

ATTACHMENT A

Sample Salt Lake City Department of Public Utilities

Agreement

Service: **Project description**

Engineer: **Engineer name**

Version Date: December 12, 2018

PROFESSIONAL SERVICES AGREEMENT

(for Design Professionals)

THIS AGREEMENT is made and entered into as of _______________, 201___ by and between SALT LAKE CITY CORPORATION, a Utah municipal corporation ("the City") and **Engineer name**, a Utah corporation, whose mailing address is **Engineer address** ("Engineer").

RECITALS

WHEREAS, the City and Engineer desire to enter into an agreement for Engineer to provide services for the work specified below.

WHEREAS, Salt Lake City Public Utilities desires to enter into an Agreement with the Engineer to provide **Services**

NOW, THEREFORE, in consideration of the foregoing recitals and the following mutual promises and considerations, the parties agree to the following:

TERMS

ARTICLE I. IDENTIFICATION OF THE PROJECT.

A. Service: **Project description** ("the Project").

B. Project No.: **Project number**.

C. Project addresses: **Project address**.

D. Brief description of the Project: **Project description**

ARTICLE II. ENGINEER SERVICES.

A. Basic Services. Engineer shall perform the "Basic Services", as more fully specified in Exhibit "A."

B. Engineer Representative. Upon execution of this Agreement the Engineer will designate in writing an Engineer's representative who shall have authority to act on behalf of Engineer. This representative shall be a professional Engineer registered in

2 Version Date: December 12, 2018 the State of Utah. Engineer shall not change Engineer's representative without at least seven (7) days prior written notice to the City. Any replacement for Engineer's representative shall be at least as qualified for the project as the person being replaced.

C. Commencement of Work. The work of Engineer shall begin on the date of execution of this Agreement. If Engineer’s work is scheduled in phases, Engineer shall only commence work on a subsequent phase after receiving written authorization to proceed on that phase from the City, and Engineer shall diligently pursue each phase to completion.

D. Completion. Engineer’s work shall be completed and accepted by as specified in Exhibit "A".

ARTICLE III. COMPENSATION

A. Basic Services. For the Basic Services specified in this Agreement, the City shall pay for actual hours worked and authorized expenses as approved in writing by the City in accordance with the scope and fee provided in Exhibit “A.” The total amount of this Agreement is **FeeTotalSum**.

ARTICLE IV. SERVICE STANDARDS AND QUALITY ASSURANCE:

A. Conformance to Laws. Engineer shall be knowledgeable of, and Engineer and Engineer’s work product for the Project shall conform to, all applicable Federal, State, City and other applicable local laws, regulations and ordinances.

B. Quality Assurance. Engineer shall be solely responsible to the City for the quality of all services performed by Engineer or any of its subconsultants under this Agreement. All services furnished by Engineer or its subconsultants shall be performed in accordance with the best professional judgment and skill, in a timely manner and shall be fit and suitable for the purposes intended by the City. The foregoing standard shall not be construed, and is not intended, to require the Engineer to exercise professional skill greater than, or to utilize techniques more advanced than, such as are now generally exercised and utilized by major firms in the same business as the Engineer in the United States.

C. Reasonable Compliance with and Identification of Applicable Service Standards. Listing of certain standards in this section does not relieve Engineer from complying with all applicable standards whether or not listed here. Engineer's work on the Project shall comply with:

1. Any special design standards specified in Exhibit "A";

2. The Americans with Disabilities Act;

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3. All other applicable building codes, laws or regulations;

4. All applicable City Standards

D. Cost Minimization. Engineer’s work under this Agreement shall at all times incorporate such designs and practices as reasonably practical to minimize the City's cost for the Project and any ongoing cost of maintenance or operation.

ARTICLE V. INSURANCE AND INDEMNIFICATION.

A. General Insurance Requirements for All Policies.

1. Any insurance coverage required herein that is written on a “claims made” form rather than on an “occurrence” form shall (i) provide full prior acts coverage or have a retroactive date effective before the date of this Agreement, and (ii) be maintained for a period of at least three (3) years following the end of the term of this Agreement or contain a comparable “extended discovery” clause.

Evidence of current extended discovery coverage and the purchase options available upon policy termination shall be provided to City.

2. All policies of insurance shall be issued by insurance companies licensed to do business in the state of Utah and either:

a. Currently rated A- or better by A.M. Best Company;

—OR—

b. Listed in the United States Treasury Department’s current Listing of Approved Sureties (Department Circular 570), as amended.

(3) Engineer shall furnish certificates of insurance, acceptable to City, verifying the foregoing matters concurrent with the execution hereof and thereafter as required.

(4) In the event any work is subcontracted, Engineer shall require its subcontractor, at no cost to City, to secure and maintain all minimum insurance coverages required of Engineer hereunder.

(5) All required certificates and policies shall be endorsed as needed to provide that coverage thereunder shall not be canceled or modified without providing, in a manner approved by the City Attorney, 30 days’ prior written

4 Version Date: December 12, 2018 notice to City or 10 days’ prior written notice for cancellation due to non-payment of premiums.

B. Required Insurance Policies. Engineer, at its own cost, shall secure and maintain during the term of this Agreement, including all renewal terms, the following minimum insurance coverage:

(Note: Unless other limits, types of insurance, or terms are agreed to by the City Attorney’s Office, the following are the insurance requirements that will be required for this Agreement. Refer to the Insurance Matrix published in City Code)

1. Workers' Compensation and Employer's Liability Workers’ compensation and employer’s liability insurance sufficient to cover all of Engineer’s employees pursuant to Utah law, unless a waiver of coverage is allowed and acquired pursuant to Utah law. In the event any work is subcontracted, Engineer shall require its subcontractor(s) similarly to provide workers’ compensation insurance for all of the latter’s employees, unless a waiver of coverage is allowed and acquired pursuant to Utah law.

2. Comprehensive General Liability Insurance. Commercial general liability (CGL) insurance with a policy endorsement naming Salt Lake City Corporation as an additional insured on a primary and non-contributory basis in comparison to all other insurance including City’s own policy or policies of insurance, in the minimum amount of $2,000,000 per occurrence with a $3,000,000 general aggregate and $3,000,000 products-completed operations aggregate. The policy shall include contractual liability insurance for the indemnity provided under this Agreement. These limits can be covered either under a CGL insurance policy alone, or a combination of a CGL insurance policy and an umbrella insurance policy and/or a CGL insurance policy and an excess insurance policy. The policy shall protect City, Engineer, and any subcontractor from claims for damages for bodily injury, including accidental death, and property damage that may arise from Engineer’s operations under this Agreement, whether performed by Engineer itself, any subcontractor, or anyone directly or indirectly employed by either of them. Such insurance shall provide coverage for premises operations, acts of independent contractors, products and completed operations.

a. If the policy is issued on a claims made basis, the policy shall be maintained for a period of one (1) year following the completion of this Agreement or contain a comparable "extended discovery" clause or "tail endorsement".

3. Comprehensive Automobile Liability Insurance. Commercial automobile liability insurance that provides coverage for owned, hired, and non-https://codelibrary.amlegal.com/codes/saltlakecityut/latest/saltlakecity_manual_ut/0-0-0-3971

5 Version Date: December 12, 2018 owned automobiles used in connection with this Agreement in the minimum amount of a combined single limit of $2,000,000 per occurrence or $1,000,000 liability per person, $2,000,000 liability per occurrence, and $250,000 property damage. These limits can be reached either with a commercial automobile liability insurance policy alone, or with a combination of a commercial automobile liability insurance policy and an umbrella insurance policy and/or a commercial automobile liability insurance policy and an excess insurance policy.

If the policy only covers certain vehicles or types of vehicles, such as scheduled autos or only hired and non-owned autos, Engineer shall only use those vehicles that are covered by its policy in connection with any work performed under this Agreement.

- OR IF THERE WILL NOT BE ANY VEHICLE OPERATIONS

3. Comprehensive Automobile Liability Insurance. Engineer shall not operate a vehicle in connection with any services rendered under this Agreement.

Inasmuch as Engineer agrees not to operate a vehicle in connection with services rendered under this Agreement, City shall not require Engineer to provide commercial automobile liability insurance.

4. Professional Liability Insurance. Professional liability insurance in the minimum amount of $2,000,000 per occurrence with a $2,000,000 annual aggregate limit.

C. Additional Insured and Pre-Cancellation Notice. The insurance policies required above shall contain an endorsement listing Salt Lake City Corporation as an additional named insured (except for the professional liability insurance required in paragraph V.A.1. and workers' compensation required in paragraph V.A.5.) and shall further provide that the policy may not be canceled without thirty (30) days prior written notice to the City.

D. Certificates of Insurance. Prior to execution of this Agreement by the City, Engineer shall provide the City with certificates evidencing the coverage described above in a form acceptable to the City Attorney's office.

E. City Continuance of Coverage. If any of the policies of insurance required from Engineer are canceled or lapse, the City may, at the City's sole discretion, obtain substitute coverage at reasonable rates. The City may deduct the cost of such coverage, plus ten percent (10%) for administrative charges, from any monies owing to Engineer.

F. Policies of Insurance. At the City's request, Engineer shall provide the City with the actual policies providing the coverage required above.

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G. Quality of Insurance Companies. All policies of insurance provided shall be issued by insurance companies qualified to do business in the State of Utah and listed on the United States Treasury Department's current Department of Treasury Fiscal Services List 470, or having a general policyholder's rating of not less than "A-" in the most current available A.M. Best Co., Inc.'s, Best Insurance Report.

H. Indemnity. Engineer shall indemnify and hold harmless the City from and against all claims on account of injury to persons, loss of life, or damage to property occurring in connection with the Work that arise out of the breach of contract, negligence, recklessness, or intentional misconduct of Engineer or its agents, servants, or employees, or the negligence of Engineer’s subconsultants; provided, Engineer does not indemnify the City against any injury, loss of life, or damage that is caused by the negligence or willful misconduct of the City, or its’ agents, servants, or employees.

ARTICLE VI. CITY'S RESPONSIBILITY.

A. City's Program for the Project. The City has provided to Engineer full information regarding the City's requirements for the Project on Exhibit “A”, which sets forth the City's objectives, constraints and criteria.

B. City's Project Manager. The City has designated ____________ as Project Manager who shall have authority to act in the City's behalf with respect to the Project.

C. City's Performance. The City shall examine documents submitted by Engineer, furnish required information and services, and render approvals and decisions promptly so as to avoid unreasonable delay in the progress of Engineer's services and of the Project.

ARTICLE VII. COMPLETION OF PROJECT.

A. Completion Date of Design. The parties acknowledge that the City intends Engineer to complete Engineer's design as specified in each project scope document as detailed in Exhibit “A”.

B. Engineer Delays in Design. If any negligent, intentional or reckless actions by Engineer in completing the environmental documents and the design study report cause the City to incur costs, Engineer shall be liable to the City for all of the City's actual costs and/or damages of every kind caused by Engineer's conduct.

ARTICLE VIII. CONSTRUCTION BUDGET.

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A. Construction Budget. The Construction Cost shall be the total cost or estimated cost to the City of all elements of the Project designed or specified by Engineer. Construction Cost does not include the compensation of Engineer and Engineer's sub-consultants, the cost of the land, rights-of-way, or other costs that are the responsibility of the City.

B. No Warranty. Evaluation of the Project budget and Engineer's preparation of Statement of Probable Construction Cost and Detailed Estimate of Construction Cost, represent Engineer's best judgment given its standard of care as specified in Article IV above. The parties acknowledge that neither Engineer nor the City has control over the costs of labor, materials or equipment, over the methods of determining bid prices by Engineers or over competitive bidding, market or negotiating conditions. Accordingly, Engineer cannot and does not warrant or represent that bid or negotiated prices will not vary from the Project budget proposed, or from any cost estimate or evaluation prepared by Engineer.

ARTICLE IX. TERMINATIONS AND DISPUTE RESOLUTION.

A. Convenience Termination by the City. The City may terminate this Agreement at any time for convenience upon seven (7) calendar days written notice.

B. Termination for Cause by the City. The City may terminate this Agreement for cause if Engineer fails to cure any defect in Engineer's performance of the work under this Agreement within seven (7) calendar days after receiving written notice to cure.

C. Termination by Engineer. If the City materially fails to meet its responsibilities and obligations under this Agreement, Engineer shall notify the City of such failure. If the City fails to cure its material breach, Engineer may, after thirty (30) days written notice, terminate its performance under this Agreement.

D. Payment for Termination. In the event of termination, the City shall pay Engineer as specified in Exhibit "B" for the work delivered and acceptable to the City through the date of termination based on hourly rates and reasonable expenses incurred as determined by the City, less any appropriate damages as the City may determine.

E. Disputes.

1. Compliance with the provisions of this Subsection E shall be a condition precedent to any legal action by Engineer or any of Engineer's subconsultants against the City, or the City's agents, Engineers or employees.

2. The provisions of this Subsection E shall not preclude or limit judicial review of any issues or disputes arising under this Agreement.

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3. Prior to seeking any judicial review the parties shall endeavor, in good faith, to resolve any disputes arising under this Agreement pursuant to the following procedures:

a. The City Project Manager shall have the initial responsibility to interpret the requirements of this Agreement.

b. Any decision by the City Project Manager interpreting the requirements of this Agreement may be appealed in writing to the Department Head of the City department responsible for the Project.

c. The City Department Head shall issue a decision within ten

(10) days after receiving all information which the Department Head may request as necessary to determine the appeal.

d. Any decision by the City Department Head may be appealed by filing a notice in writing with the City Department Head.

Such appeal must be filed within ten (10) days after the City Department Head decision and shall specify in detail the basis for appeal claimed by Engineer.

e. The City Department Head shall establish a Dispute Committee to hear appeals consisting of three persons knowledgeable in the field of design who are professional engineers and are not employed nor affiliated with the City.

f. The City shall present its case prior to deliberations of the Committee. Engineer shall also have the opportunity to fully present its case to the Committee.

g. The Committee may request any other materials and written memorandum necessary to consider the issues and may schedule other proceedings as necessary.

h. The decision of the Committee shall be rendered in writing within fifteen (15) working days from the Committee's final hearing of the issue and receipt of any supplemental materials requested by the Committee.

i. The decision of the Committee shall be a non-binding interpretation of the facts that are the subject of the appeal, subject to any judicial review.

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5. Notwithstanding the pendency of any appeal provided above, Engineer shall, if so ordered by the City, comply with all orders of the City concerning the performance of this Agreement.

6. Any decision of the City to terminate the work under this Agreement shall not be subject to the dispute resolution of this Article.

ARTICLE X. OWNERSHIP OF DOCUMENTS.

A. City Ownership. The data used in compiling, and the results of, any tests, surveys or inspection of the Project site, as well as all photographs, drawings, electronically stored records of work performed, renderings, specifications, schedules, data processing output, computations, studies, audits, reports, models and other items of like kind prepared by Engineer, its employees and Engineers, shall be the sole and exclusive property of the City, and the City shall own all intellectual property rights thereto, whether the Project for which they are made is executed or not. Engineer may retain reproducible copies of all of the foregoing documents for information and reference and customary marketing and public relations. The originals of all of the foregoing documents shall be delivered to the City promptly upon completion thereof.

This provision may be enforced by an order of specific performance and is independent of any other provision of this Agreement. Compliance with this paragraph shall be a condition precedent to the City's obligation to make final payment to Engineer.

B. Other Uses of Documentation. The City shall utilize documents created by Engineer for this Project only and Engineer's liability in connection with their use for construction purposes shall be limited to the use of such documents for this Project. To the extent permitted by law, the City hereby indemnifies Engineer against any claims arising from the use by the City of the foregoing documents on any other project or on any modification to the Project after completion unless Engineer is employed to perform such modification.

ARTICLE XI. ENGINEER/SUBCONSULTANT RELATIONSHIP. The City acknowledges that Engineer may employ various specialized subconsultants of whom Engineer shall give written notice to the City at least seven (7) days prior to Engineer's employment of the subconsultants to perform portions of the work provided for in this Agreement. It is solely Engineer’s responsibility to ensure that any of Engineer’s subconsultants perform in compliance with the terms of this Agreement.

Subconsultants may not be changed without ten (10) days prior written notice to the City.

ARTICLE XII. SAFETY. Engineer agrees to take all necessary safety precautions and comply with all applicable provisions of federal, state and municipal safety laws and building codes to prevent accidents or injury to its employees, agents or subconsultants and to protect other persons on, about or adjacent to the premises where Engineer's work is being performed from any accidents or injuries caused by Engineer, its agents or

10 Version Date: December 12, 2018 subconsultants. This safety requirement shall not relieve any contractor performing work on the Project from complying with the safety requirements of their Agreement, nor shall it make Engineer responsible for the contractor’s compliance with the safety requirements. The City Project Manager or designee may stop Engineer’s work if safety laws or safe work practices are not being observed.

ARTICLE XIII. DAMAGE TO PROPERTY. Engineer shall be responsible for any and all damage to property belonging to the City and the City's tenants to the extent caused by an act or omission of Engineer, its agents or employees. Engineer shall be responsible for repairing said damaged property and shall pay the costs therefor.

ARTICLE XIV. LICENSES. Engineer agrees to possess and keep current all state and local licenses required for the services to be performed herein.

ARTICLE XV. INDEPENDENT CONTRACTOR. Engineer is an independent contractor and not an employee of the City. Except as specifically provided in this Agreement, Engineer has no authority to act on behalf of the City.

ARTICLE XVI. ASSIGNMENT. This Agreement cannot be assigned by either party.

ARTICLE XVII. NOTICES.

A. Regular Notice. Notices to the City provided for herein shall be sufficient if sent certified mail postage prepaid, or overnight delivery service for which a delivery receipt is required, addressed to:

Laura Briefer, Director Salt Lake City Public Utilities 1530 So. West Temple Salt Lake City, Utah 84115 Fax No. (801)483-6818

Notices to Engineer, if sent by certified mail postage prepaid or overnight delivery service for which a delivery receipt is required, addressed to:

**Engineer name** **Engineer address** FAX NO. **Engineer fax**

B. Effectiveness of Notice. Notices sent by certified mail or overnight express delivery as provided in subparagraph A above shall be effective on the date on which such notice was sent.

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C. Facsimile Notice. Notice may be sent by facsimile. Facsimile notice shall be effective on the date of transmission provided that a confirmation establishing the successful transmission of the notice is sent by first class mail, postage prepaid, along with a copy of the notice no later than 24 hours after the facsimile notice is transmitted.

D. Facsimile Notice Required. If any notice is required under this Agreement with a period of less than seven (7) days, notice shall be sent by facsimile as provided in subparagraph (D) above.

E. Saturdays, Sundays and Legal Holidays. If the time for response to any notice expires on Saturday, Sunday or a legal holiday in the State of Utah, the time shall be extended to 5:00 p.m. local time on the next working day.

ARTICLE XVIII. NO THIRD-PARTY BENEFICIARIES. Engineer assumes no duty or responsibility under this Agreement that may be construed as being for the benefit of and/or thereby enforceable by any contractor, subcontractor, sub-subcontractor or any of their surety companies or any other third party. Engineer’s obligations are solely to the City. This Agreement shall confer no third party rights whatsoever.

ARTICLE XIX. REPRESENTATION REGARDING ETHICAL STANDARDS FOR

CITY OFFICERS AND EMPLOYEES AND FORMER CITY OFFICERS AND

EMPLOYEES. The Engineer represents that it has not: (1) provided an illegal gift or payoff to a city officer or employee or former city officer or employee, or his or her relative or business entity; (2) retained any person to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, or brokerage or contingent fee, other than bona fide employees or bona fide commercial selling agencies for the purpose of securing business; (3) knowingly breached any of the ethical standards set forth in the city's conflict of interest ordinance, Chapter 2.44, Salt Lake City Code; or (4) knowingly influenced, and hereby promises that it will not knowingly influence, a city officer or employee or former city officer or employee to breach any of the ethical standards set forth in the city's conflict of interest ordinance, Chapter 2.44, Salt Lake City Code.

ARTICLE XX. CAPITALIZED TERMS. Terms capitalized in this Agreement that are defined in this Agreement shall have the meaning specified in this Agreement.

Other terms are capitalized solely for convenient reference.

ARTICLE XXI. GOVERNMENT RECORDS ACCESS AND MANAGEMENT ACT.

The City is subject to the requirements of the Government Records Access and Management Act, Chapter 2, Title 63, Utah Code Annotated or its successor ("GRAMA"). All materials submitted by Engineer pursuant to this Agreement may be subject to disclosure unless such materials are exempt from disclosure pursuant to GRAMA. Any materials for which Engineer claims a privilege from disclosure shall be submitted marked as "Confidential" and accompanied by a statement from Engineer

12 Version Date: December 12, 2018 explaining Engineer’s claim of exemption from disclosure. The City will make reasonable efforts to notify Engineer of any requests made for disclosure of documents submitted under a claim of confidentiality. Engineer may, at Engineer's sole expense, take any appropriate actions to prevent disclosure of such material. Engineer specifically waives any claims against the City related to disclosure of any materials required by GRAMA.

ARTICLE XXII. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, representations or agreements either written or oral, and cannot be altered, amended or modified except in writing signed by both parties.

ARTICLE XXIII. GOVERNING LAW AND VENUE. The laws of the State of Utah shall govern this Agreement, and venue shall be in Salt Lake County, Utah.

IN WITNESS WHEREOF, the parties have signed this Agreement to be effective as of the day and year first above written.

SALT LAKE CITY CORPORATION

By____________________________

Laura Briefer Director

ATTEST AND COUNTERSIGN:

CITY RECORDER

APPROVED AS TO LEGAL FORM:

Senior City Attorney

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**Engineer name**

By_____________________________

**Name of the Corporation President**

Its President

STATE OF UTAH )

: ss.

COUNTY OF SALT LAKE )

On the _____ day of ___________________, 2016, personally appeared before me ___________________________, who being by me duly sworn, did say that he is the President of **Engineer name**, a Utah corporation, and said person acknowledged to me that said corporation executed the same.

NOTARY PUBLIC, residing in Salt Lake County, Utah

My Commission Expires:

**Engineer address**