3-Exhibit A - Design Professional Services Agreement.pdf

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CONTRACT# ___________________

DESIGN PROFESSIONAL SERVICES AGREEMENT

This Design Professional Services Agreement (“Agreement”) is between PARK CITY MUNICIPAL

CORPORATION, a Utah municipal corporation (“PCMC”), and [insert NAME OF DESIGN

PROFESSIONAL], a [insert state of incorporation or formation] [insert “corporation,” “limited liability company,” or other entity type] (the “Design Professional”).

PCMC and Design Professional want to enter into an agreement for the Design Professional to perform the services and tasks as specified below.

The parties therefore agree as follows:

ARTICLE 1 – SCOPE OF SERVICES.

A. Scope of Services. Design Professional shall perform the services and tasks identified and designated as Design Professional responsibilities throughout this Agreement and as outlined in Schedule A attached to this Agreement (“Scope of Services”).

B. Design Professional Representative. Design Professional designates [insert name of

Design Professional representative] as the authorized representative vested with the authority to act on behalf of the Design Professional. Design Professional may change its designated representative by providing written notice to PCMC.

C. PCMC Representative. PCMC designates [insert project manager name] or their designee as its representative who has the authority to act on behalf of PCMC.

ARTICLE 2 – TERM.

This Agreement will become effective as of the date the last party signed it as indicated by the date associated with that party’s signature. The term of this Agreement ends at midnight on

[insert date in format MM/DD/YYYY] unless terminated sooner or extended as provided in this

Agreement.

OPTIONAL: PCMC may at its sole option extend the term of this Agreement for [insert number] additional period(s) of [insert “year(s)” “month(s)” or other time period] each by notifying

Design Professional in writing at least 30 days prior to the expiration of this Agreement.

ARTICLE 3 – COMPENSATION, INVOICING, AND PAYMENT.

A. Compensation. For performance of the Scope of Services, PCMC shall pay a total fee in an amount not to exceed $[insert numeric dollar amount]. Any work performed beyond the defined Scope of Services requires a written request from PCMC.

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Compensation for such additional work shall adhere to the terms outlined in Schedule

B, if attached. In the absence of a Schedule B, any compensation for extra work shall be determined based on a mutually agreed-upon written agreement between both parties.

B. Invoicing and Payment. Design Professional shall invoice PCMC on a monthly basis for services completed during that period. PCMC shall pay Design Professional within 30 days of receipt of each invoice. Requests for earlier payment will be considered if a discount is offered for the earlier payment. For services that remain unpaid for a period exceeding 60 days, interest will accumulate at a rate of six percent per annum.

ARTICLE 4 – SERVICE STANDARDS AND COMPLIANCE WITH LAWS.

A. Service Standards. Design Professional shall be responsible for the quality of all services performed by its employees, agents, subcontractors, and all other persons (collectively, “Subcontractors”) performing any services under this Agreement. All services shall be executed with competence and in conformity with the standard of care, diligence, and skill ordinarily exercised by other design professionals within the Design Professional’s field or with the same or similar professional license in the same or similar locality under the same or similar circumstances. Notwithstanding the above, if the nature of the

Scope of Services requires specialized design expertise, then Design Professional shall perform the design services consistent with the specialized design expertise.

B. Conformance to Laws. In providing services under this Agreement, Design Professional and its Subcontractors shall comply with all applicable federal, state, PCMC, and other local laws, regulations, and ordinances, including applicable licensure and permit requirements, regulations for certification, operation of facilities, and accreditation, employment laws, and any other standards or criteria described in this Agreement.

C. E-Verify. Design Professional shall register and participate in E-Verify or an equivalent program for each employee employed within the state of Utah if this Agreement is entered into for the physical performance of services within Utah, unless exempted by

Utah Code § 63G-12-302. Design Professional shall require that each of its

Subcontractors, at every tier, certify under penalty of perjury that each Subcontractor has registered and is participating in E-Verify or an equivalent program, to the extent applicable.

ARTICLE 5 – RECORDS AND INSPECTIONS.

A. Records. Design Professional shall keep any records, documents, invoices, reports, data, information, and all other material regarding matters covered, directly or indirectly, by this Agreement for six years after expiration of this Agreement. This includes everything necessary to properly reflect all expenses related to this Agreement and records of accounting practices necessary to assure proper accounting of all expenses under this

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B. Inspection of Records. Design Professional shall make all of the records referenced in this section available for inspection to PCMC, its authorized representatives, the State

Auditor, and other government officials authorized to monitor this Agreement by law.

Design Professional must permit PCMC or its authorized representative to audit and inspect any data or other information relating to this Agreement. PCMC reserves the right to initiate an audit of the Design Professional's activities concerning this

Agreement, at the expense of PCMC, utilizing an auditor selected by PCMC.

C. Government Records Access and Management Act. PCMC is subject to the requirements of the Government Records Access and Management Act, Title 63G, Chapter 2 of the

Utah Code (“GRAMA”). All materials submitted by Design Professional related to this

Agreement are subject to disclosure unless the materials are exempt from disclosure under GRAMA. The burden of claiming an exemption from disclosure rests solely with

Design Professional. Any materials for which Design Professional claims an exemption from disclosure based on business confidentiality as provided in Utah Code § 63G-2-309

(or successor provision) must be marked as “Confidential” and accompanied at the time of submission by a statement from Design Professional explaining the basis for the claim. Generally, GRAMA only protects against the disclosure of trade secrets or commercial information that could reasonably be expected to result in unfair competitive injury. PCMC will make reasonable efforts to notify Design Professional of any requests made for disclosure of documents submitted under a claim of confidentiality. Design Professional specifically waives any claims against PCMC related to disclosure of any materials pursuant to GRAMA.

ARTICLE 6 – RELATIONSHIP OF PARTIES.

A. Independent Contractor. The parties intend that Design Professional is an independent contractor and not an employee of PCMC. Except as specifically provided in this

Agreement, the parties intend that Design Professional has no authority to act on behalf of PCMC.

B. Subcontractor Relationship. The Design Professional shall have full control and authority over performance and activities of its Subcontractors throughout the execution of this Agreement. It is the sole responsibility of Design Professional to ensure that its Subcontractors adhere to the terms and conditions outlined in this Agreement.

Furthermore, Design Professional shall bear full responsibility for any actions or omissions of its Subcontractors.

C. Treatment of Assets. Neither party will have an interest in the intellectual property owned or licensed by the other party, unless otherwise agreed by the parties in writing.

PCMC will become the owner of all deliverables, work product, and other materials specifically created by the Design Professional and its Subcontractors under this

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ARTICLE 7 – INDEMNIFICATION.

A. Definitions. In this Agreement, the following definitions apply:

(1) “Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

(2) “Litigation Expense” means any reasonable out-of-pocket expense incurred in defending a Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

(3) “Loss” means any amount awarded in, or paid in settlement of, any Proceeding, including any interest but excluding any Litigation Expenses.

(4) “Proceeding” means any investigation, claim, judicial, administrative, or arbitration action or lawsuit, or other cause of action of every kind or character, brought by third parties against PCMC, its agents, employees, or officers, that arises out of this Agreement or the performance of this Agreement by Design

Professional or its Subcontractors or subconsultants of any tier, or anyone acting under Design Professional’s direction or control, including after the expiration or termination of this Agreement.

B. Indemnification. Design Professional shall indemnify PCMC and its agents, employees, and officers against all Losses arising out of a Proceeding, to the extent caused by or resulting from the Design Professional’s breach of contract, negligence, recklessness, or intentional misconduct, or the negligence of Design Professional’s Subcontractor. If such

Losses are caused by or result from the concurrent negligence of the PCMC or its agents, employees, and officers, this indemnity provision shall be valid and enforceable to the extent of the Design Professional’s breach of contract, negligence, recklessness, or intentional misconduct; or negligence of Design Professional’s Subcontractor.

C. Reimbursement of Litigation Expenses. Design Professional shall reimburse PCMC for all

Litigation Expenses to the extent they were incurred due to Design Professional’s breach of contract, negligence, recklessness, or intentional misconduct; or the negligence of

Design Professional’s Subcontractor.

D. Waiver. Design Professional expressly agrees that the indemnification provision herein constitutes the Design Professional’s waiver of immunity under Utah Code § 34A-2-105 for the purposes of this Agreement. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this

Agreement. No liability shall attach to PCMC by reason of entering into this Agreement except as expressly provided herein.

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E. No Limitation. The indemnification obligations of this Agreement shall not be reduced by a limitation on the amount or type of damages, compensation, or benefits payable by or for the Design Professional or Subcontractor under workers’ compensation acts, disability benefits acts, or other employee benefit acts.

F. Interpretation. The parties intend that the indemnity and defense provisions in this

Article shall be interpreted so as to be enforceable to the fullest extent permitted by law, but nothing herein shall be interpreted to violate public policy.

G. Environmental Indemnity. Design Professional shall indemnify PCMC, its agents, employees, and officers for any Indemnifiable Losses from a Proceeding arising out of

Design Professional’s willful, reckless or negligent violation of federal, state, or local environmental laws or regulations, and shall include but not be limited to all cleanup and remedial costs, diminution in value of property, and any fines or fees imposed as a result.

ARTICLE 8 – INSURANCE.

At its own cost and expense, Design Professional shall maintain the following mandatory insurance coverage to protect against claims for injuries to persons or property damage that may arise from or relate to the performance of this Agreement by Design Professional, its agents, representatives, employees, or Subcontractors for the entire duration of this

Agreement or for such longer period of time as set forth below. Prior to commencing any work, Design Professional shall furnish a certificate of insurance as evidence of the requisite coverage.

The certificate of insurance must include endorsements for additional insured, waiver of subrogation, primary and non-contributory status, and completed operations.

A. Commercial General Liability Insurance. Design Professional shall maintain commercial general liability insurance on a primary and non-contributory basis in comparison to all other insurance, including PCMC’s own policies of insurance, for all claims against

PCMC. The policy must be written on an occurrence basis with limits not less than

$1,000,000 per occurrence and $3,000,000 aggregate for personal injury and property damage. Upon request of PCMC, Design Professional must increase the policy limits to at least the amount of the limitation of judgments described in Utah Code § 63G-7-604, the Governmental Immunity Act of Utah (or successor provision), as calculated by the state risk manager every two years and stated in Utah Admin. Code R37-4-3 (or successor provision).

B. Automobile Liability Coverage. Design Professional shall maintain automobile liability insurance with a combined single limit of not less than $2,000,000 per accident for bodily injury and property damage arising out of the ownership, maintenance, and use of owned, hired, and non-owned motor vehicles. This policy must not contain any exclusion or limitation with respect to loading or unloading of a covered vehicle.

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C. Professional Liability Insurance. Design Professional shall maintain professional liability insurance with annual limits not less than $1,000,000 per occurrence. If written on a claims-made basis, Design Professional shall maintain professional liability insurance coverage meeting these requirements for the applicable period of statutory limitation of claims (or statute of repose, if applicable) after completion of the Scope of Services or termination of this Agreement.

D. Workers’ Compensation Insurance and Employer’s Liability. Design Professional shall maintain workers’ compensation insurance with limits not less than the amount required by statute, and employer’s liability insurance limits of at least $1,000,000 each accident, $1,000,000 for bodily injury by accident, and $1,000,000 each employee for injury by disease. The workers’ compensation policy must be endorsed with a waiver of subrogation in favor of “Park City Municipal Corporation” for all work performed by the

Design Professional, its employees, agents, and Subcontractors.

E. Umbrella/Excess Coverage. The insurance limits required by this section may be met by either providing a primary policy or in combination with umbrella / excess liability policy(ies). To the extent that umbrella/excess coverage is used to satisfy the limits of coverage required hereunder, the terms of such coverage must be following form to, or otherwise at least as broad as, the primary underlying coverage, including amending the

"other insurance" provisions as required so as to provide additional insured coverage on a primary and non-contributory basis, and subject to vertical exhaustion before any other primary, umbrella/excess, or any other insurance obtained by the additional insureds will be triggered.

F. Insured Parties. Each policy and all renewals or replacements, except those policies for

Professional Liability, and Workers Compensation and Employer’s Liability, must name

PCMC (and its officers, agents, and employees) as additional insureds on a primary and non-contributory basis with respect to liability arising out of work, operations, and completed operations performed by or on behalf of Design Professional.

G. Waiver of Subrogation. Design Professional waives all rights against PCMC and any other additional insureds for recovery of any loss or damages to the extent these damages are covered by any of the insurance policies required under this Agreement. Design

Professional shall cause each policy to be endorsed with a waiver of subrogation in favor of PCMC for all work performed by Design Professional, its employees, agents, and

Subcontractors.

H. Quality of Insurance Companies. All required insurance policies must 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

570, or having a general policyholders rating of not less than "A-" in the most current available A.M. Best Co., Inc.'s, Best Insurance Report, or equivalent.

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I. Cancellation. Should any of Design Professional’s required insurance policies under this

Agreement be cancelled before the termination or completion of this Agreement, Design Professional must deliver notice to PCMC within 30 days of cancellation. PCMC may request and Design Professional must provide within 10 days certified copies of any required policies during the term of this Agreement.

J. Additional Coverage. Notwithstanding anything to the contrary, if Design Professional has procured any insurance coverage or limits (either primary or on an excess basis) that exceed the minimum acceptable coverage or limits set forth in this Agreement, the broadest coverage and highest limits actually afforded under the applicable policy(ies) of insurance are the coverage and limits required by this Agreement and such coverage and limits must be provided in full to the additional insureds and indemnified parties under this Agreement. The parties expressly intend that the provisions in this

Agreement will be construed as broadly as permitted to be construed by applicable law to afford the maximum insurance coverage available under Design Professional’s insurance policies.

K. No representation. In specifying minimum Design Professional’s insurance requirements, PCMC does not represent that such insurance is adequate to protect

Design Professional from loss, damage or liability arising from its work. Design

Professional is solely responsible to inform itself of types or amounts of insurance it may need beyond these requirements to protect itself.

ARTICLE 9 – NONDISCRIMINATION.

Design Professional shall not discriminate against any employee or applicant for employment because of race; ethnicity; color; pregnancy, childbirth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion; national origin; disability; sexual orientation;

gender identity; or military status.

A. Policy. Design Professional shall implement an employment nondiscrimination policy, if

Design Professional does not already have such a policy, to effectuate the prohibition in this section; and

B. Subcontractor Flow-Through. Design Professional shall incorporate the foregoing non-discrimination provisions in all subcontracts or assignments under this Agreement and take action as required to ensure full compliance with the provisions of this non-discrimination policy.

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ARTICLE 10 – ASSIGNMENT/SUBCONTRACTING.

A. Assignment. Design Professional shall not assign any portion of its performance under this Agreement without PCMC’s written consent. Consent must be sought in writing by the Design Professional not less than 30 days before the date of any proposed assignment. PCMC reserves the right to reject assignment without cause. Any purported transfer in violation of this section will be void.

B. Subcontracting. Design Professional shall obtain advance written consent from PCMC for any Subcontractor not identified in the Scope of Services.

ARTICLE 11 – TERMINATION.

A. Convenience. Either party may terminate this Agreement for any reason or no reason by giving the other party at least 30 days’ prior written notice. This Agreement will terminate at midnight at the end of the 30th day after that notice is effective. Design

Professional must be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination, according to the provisions of this

B. For Cause. If Design Professional fails to comply with any provision of this Agreement and fails to correct noncompliance within three days of having received written notice, PCMC may immediately terminate this Agreement for cause by providing a notice of termination to Design Professional.

ARTICLE 12 – NOTICES.

A. Notice Addresses. For a notice or other communication to a party under this Agreement to be valid, it must be addressed using the information specified below for that party or any other information specified by that party in a notice delivered in accordance with this section.

To PCMC: Park City Municipal Corporation

P.O. Box 1480

Park City, UT 84060-1480

Attn: City Attorney’s Office

PCMC_Notices@parkcity.gov

With a copy to:

- PCMC’s Representative pursuant to Article 1.C.

- PCMC’s City Recorder at michelle.kellogg@parkcity.gov

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To Design Professional: [Name]

[Address Line 1]

[Address Line 2]

[Email address]

B. Delivery. A notice or other communication under this Agreement will be effective if it is in writing and received by the party to which it is addressed. It will be deemed to have been received as follows: (1) upon receipt as stated in the tracking system of a delivery organization that allows users to track deliveries; (2) when the intended recipient signs for the delivery; (3) when delivered by email to the intended recipient with a read receipt, an acknowledgement of receipt, or an automatic reply.

C. Refusal or Inability to Deliver. If the intended recipient rejects or otherwise refuses to accept delivery, or if it cannot be delivered because of a change of address for which no notice was given, then delivery is effective upon that rejection, refusal, or inability to deliver.

D. Time of Delivery. If a notice or other communication addressed to a party is received after 5:00 p.m. on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice will be deemed received at 9:00 a.m. on the next business day.

ARTICLE 13 – MISCELLANEOUS PROVISIONS.

A. Entire Agreement. This Agreement constitutes the entire understanding between the parties regarding the subject matter of this Agreement.

B. Modification and Waiver. To be effective, any modification to this Agreement or to the

Scope of Services must be in writing and signed by both parties. No waiver under this

Agreement will be effective unless it is in writing and signed by the party granting the waiver (in the case of PCMC, by an individual authorized by PCMC to sign the waiver). A waiver granted on one occasion will not operate as a waiver on other occasions.

C. Timely Performance. Design Professional shall complete the Scope of Services by any applicable deadline stated in this Agreement. Design Professional is liable for all reasonable damages to PCMC incurred as a result of Design Professional’s failure to timely perform the Scope of Services required under this Agreement.

D. Governing Law, Jurisdiction, Venue. Utah law governs all adversarial proceedings arising out of this Agreement or the subject matter of this Agreement. As the exclusive means of bringing adversarial proceedings to resolve any dispute arising out of this Agreement or the subject matter of this Agreement, a party may bring such a proceeding in courts of competent jurisdiction in Summit County, Utah.

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E. Severability. The parties acknowledge that if a dispute between the parties arises out of this Agreement or the subject matter of this Agreement, it would be consistent with the wishes of the parties for a court to interpret this Agreement as follows: (1) with respect to any provision that it holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision; (2) if an unenforceable provision is modified or disregarded in accordance with this section, by holding that the rest of the

Agreement will remain in effect as written; (3) by holding that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and (4) if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this

Agreement, by holding the entire Agreement unenforceable.

F. No Non-Party Rights. Nothing in this Agreement is intended to grant rights of any kind to any non-party or create third-party beneficiary rights of any kind.

G. Force Majeure. For purposes of this Agreement, a Force Majeure Event means any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents a party from complying with any of its obligations under this Agreement, but a Force Majeure Event will not include any strike or labor unrest, an increase in prices, a change in general economic conditions, or a change of law. A party that is prevented by the occurrence of a Force Majeure Event from performing any one or more obligations under this Agreement will not be liable for any failure or delay in performing those obligations, on condition that the non-performing party uses reasonable efforts to perform. The non-performing party shall promptly notify the other party of the occurrence of a Force Majeure Event and its effect on performance.

Thereafter, the nonperforming party shall update the other party as reasonably necessary regarding its performance. The nonperforming party shall use reasonable efforts to limit damages to the other party and to complete its full performance under this Agreement.

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Each party is signing this Agreement on the date stated opposite that party’s signature.

PARK CITY MUNICIPAL CORPORATION, a Utah municipal corporation

Date: ________________________ By: ________________________________

Adam Lenhard, City Manager

Attest:

City Recorder’s Office

Approved as to form:

City Attorney’s Office

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[insert NAME OF DESIGN PROFESSIONAL]

Tax ID #:

PC Business License #: BL

Date: ________________________ By: ________________________________

[insert name of individual signing]

[insert title of individual signing]

An authorized signer

Design Professional Services Agreement (3-26) | pg. A-1

SCHEDULE A – SCOPE OF SERVICES

Design Professional Services Agreement (3-26) | pg. B-1

SCHEDULE B – FEE SCHEDULE FOR EXTRA WORK

Note: Any work in addition to or outside the Scope of Services in Schedule A shall be approved in advance in writing by PCMC and shall not exceed the contract price reflected in Article 3 of the Agreement.