6-Sample - GSD Designers Agreement03.03.26 1.docx

DESIGNER’S AGREEMENT

DESIGNER’S AGREEMENT

WITH GRANITE SCHOOL DISTRICT

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This DESIGNER’S AGREEMENT is made this ____ day of _______________, 20___, between the Granite School District, a political subdivision of the State of Utah (hereafter “GSD”) and the Architect / Engineer, ____________________________, a corporation of the State of Utah (hereafter “DESIGNER”), whose local address is:

DESIGNER:

GSD and Designer hereby agree to all provisions of this Agreement for the Project identified.

ARTICLE I.

DOCUMENTS INCORPORATED BY REFERENCE

A. GSD GENERAL CONDITIONS.

1. The GSD General Conditions (“General Conditions”) and Supplemental General Conditions (“Supplemental General Conditions”) which are current as of the date of this Agreement and on file with GSD are incorporated by reference as if fully set forth in this Agreement.

2. The DESIGNER and GSD shall be bound by the definitions and terms described in the General Conditions.

3. Unless the context provides otherwise, all definitions and interpretations of provisions of this Agreement shall be as stated in the General Conditions. In case of conflict between the provisions of this Agreement and the General Conditions, the provisions of this Agreement shall control.

B. SOLICITATION / PROCUREMENT DOCUMENTS AND REQUIREMENTS.

The DESIGNER shall comply with the following:

1. State of Utah/GSD Procurement requirements.

2. The GSD solicitation documents and DESIGNER submitted documents for this project are hereby incorporated by reference as part of this Agreement. Attachment “C” hereto indicates changes to the DESIGNER’s response, if applicable.

3. The procurement documents and Contract Documents.

C. GSD DESIGN STANDARDS.

1. Any additional Design Standards deemed appropriate and provided to DESIGNER by the GSD Representative shall also be incorporated and DESIGNER shall be bound thereby.

D. ATTACHMENTS TO THIS AGREEMENT

All attachments to this Agreement are incorporated by reference as if fully set forth in this Agreement. Unless the context requires otherwise, any reference in this Agreement to an “Attachment” means such an item incorporated by reference to this Agreement.

E. HIERARCHY OF DOCUMENTS.

In case of conflict, the following documents supersede each other in accordance with the following respective hierarchy:

1. Codes and applicable law;

2. The attachments hereto;

3. The body of this Agreement;

4. The Supplemental General Conditions;

5. The General Conditions;

6. The Design Standards;

7. The solicitation documents issued by GSD for the selection of the DESIGNER; and

8. Any response by DESIGNER to the procurement documents attached to this Agreement.

ARTICLE II.

GENERAL REQUIREMENTS

A. GENERAL OBJECTIVES. The objectives of the Work under this Agreement include, but are not limited to the following:

1. Comply with the requirements of the Predesign Program;

2. Provide designs that comply with applicable laws, codes, rules, regulations and quality requirements;

3. Comply with this Agreement including the Supplemental General Conditions, General Conditions, and Design Standards;

4. Meet the established Construction Budget in Attachment “A”;

5. Maintain the Project Schedule in Attachment “A”; and

6. Work with GSD and the Contractor to accomplish all these objectives.

B. SCHEDULE. Time is of the essence. The DESIGNER shall commence and prosecute the work diligently so as to be in compliance with the Project Schedule in Attachment “A.” However, the DESIGNER shall not be responsible for failure to comply with the Project Schedule or any portion thereof to the extent such noncompliance is not due to the fault of the DESIGNER or anyone for whom the DESIGNER is liable.

C. STANDARD OF CARE; RESPONSIBILITY. The services of DESIGNER and its Subconsultants, if any, shall be performed in accordance with and judged solely by the standard of care exercised by licensed members of their respective professions having substantial experience providing similar services on projects similar in type, magnitude and complexity to the Project that is the subject of this Agreement. The DESIGNER shall be liable to GSD for claims, liabilities, additional burdens, penalties, damages or third party claims (i.e. a Contractor claim against GSD), to the extent caused by errors or omissions that do not meet this standard of care.

D. PUBLIC INFORMATION RELEASE. DESIGNER shall not make any public information release in connection with the Project without advance written permission of GSD. DESIGNER shall require of its Subconsultants the same agreement to maintain the confidentiality of information. Notwithstanding this provision, the DESIGNER does not need GSD’s consent to respond to any information release which is needed to defend the DESIGNER’s interest, or to the extent such public information release is protected by constitutional free speech rights.

E. CONFLICT OF INTEREST. DESIGNER and the DESIGNER’S Subconsultants shall not have any member that has a conflict of interest that may reasonably affect the DESIGNER’S or Subconsultants’ professional judgment in regard to the Project, unless such conflict is disclosed to the GSD and approved by GSD in writing. It is the DESIGNER’S duty to enforce this provision with all Subconsultants.

1. Use of “Sales Agents.” The DESIGNER warrants that no person or selling agency has been employed or retained except as indicated in writing to GSD.

F. LAWS, CODES AND REGULATIONS. DESIGNER and its Subconsultants shall use their best efforts consistent with the Standard of Care set forth in Article II.C. to comply with laws, codes, rules, regulations, ordinances and quality requirements applicable to the Project as established by State, local, or federal statute, codes adopted by State, local, or federal law, administrative rule and/or deemed applicable to the Project pursuant the express terms of this Agreement including those documents incorporated by reference. DESIGNER or GSD may request, and will be granted, a meeting with the other to discuss any additional codes or requirements that are applicable to the Project. In the case of change(s) or conflicts in the applicable code requirements, laws, rules or regulations, during the course of the Project and within the Scope of DESIGNER’S Services, the DESIGNER shall promptly notify GSD in writing when and if the DESIGNER becomes aware of such change(s) or conflicts. If GSD determines that work that has already been properly performed must be changed as a result of change(s) or conflicts in the applicable code requirements, laws, rules or regulations, such changes to the work will be considered additional work under this Agreement and the DESIGNER shall then prepare all documents to comply with the needed change(s).

G. ESTABLISH CONSTRUCTION BUDGET. The DESIGNER shall prepare a construction budget (including cost estimate) for each phase of work under this Agreement in accordance with the Design Standards.

H. IF BIDS/PROPOSALS EXCEED CONSTRUCTION BUDGET. If no acceptable bid or proposal is received within the Construction Budget set forth in Attachment “A”, GSD in its sole discretion may elect any one or more of the following options:

1. Give written approval of an increase in the Construction Budget; and/or

2. Rebid or renegotiate the construction contract within a reasonable time; and/or

3. Revise the Project scope and/or quality as necessary to meet the Construction Budget; and/or

4. Abandon the Project and terminate this Agreement.

If GSD elects an option or options other than abandonment of the Project and termination of this Agreement, the DESIGNER shall perform the DESIGNER’S services to implement the selected option or options at no additional cost to GSD.

I. STAFFING. The DESIGNER shall maintain the human, physical and other resources reasonably necessary to timely meet its obligations under this Agreement.

J. GSD REVIEWS, LIMITATIONS. The right of GSD or any entity/user to perform plan checks, plan reviews, other reviews and/or comment upon the work of the DESIGNER as well as any approval by GSD, shall not be construed as relieving the DESIGNER from its professional and legal responsibility for services required under this Agreement. No review by GSD or any entity/user, approval or acceptance, or payment for any of the services required under this Agreement shall be construed to operate as a waiver by GSD of any right under this Agreement or of any cause of action arising out of the performance or nonperformance of this Agreement, and the DESIGNER shall be and remain liable to GSD in accordance with applicable law for all damages to GSD caused by the DESIGNER’S acts, errors and/or omissions.

K. USE OF PROTOTYPICAL DESIGNS OR DESIGNS PROVIDED BY GSD. DESIGNER shall use prototypical designs or other design drawings, specifications or calculations provided by GSD in the request for proposal. DESIGNER shall recheck such designs and any other design data, drawings, specifications and calculations provided by GSD. DESIGNER shall correct any error or omission as deemed necessary thereafter, and shall be responsible therefore to the same extent as if such materials had been provided by DESIGNER under this Agreement. DESIGNER shall be provided with all change orders, proposed change orders, and clarifications, from previous projects that are applicable to this Project. DESIGNER shall incorporate all pertinent material into the new plans and specifications. If DESIGNER has provided design services to GSD on previous projects and has designed buildings similar to the components of this Project, which are in DESIGNER’S charge, DESIGNER shall, at the direction of GSD, modify and reuse existing design as much as possible. Where existing designs are being reused, drawings are required to conform to GSD graphic/CAD standards unless prior written approval is given by GSD.

L. SUBCONSULTANTS. The DESIGNER shall be responsible and liable to GSD for the services of any Subconsultant of DESIGNER. Any reference in this Agreement to Subconsultant shall refer to any subcontractor, consultant or subconsultant of the DESIGNER at any tier. DESIGNER shall, without additional expense to GSD, be responsible for obtaining any business and professional licenses and for complying with any applicable Federal, State, and local laws, codes, and regulations, as necessary for the performance of the DESIGNER’S services.

M. HAZARDOUS MATERIALS. The DESIGNER shall comply with the Supplemental General Conditions, General Conditions, and Design Standards provisions regarding hazardous materials.

N. DISCRIMINATION AND SEXUAL HARASSMENT PROHIBITED. Pursuant to the laws of the United States and the State of Utah, the DESIGNER, or any person acting on behalf thereof, will not discriminate against any employee or applicant for employment because of race, color, sex (including pregnancy, childbirth or pregnancy related conditions), religion, national origin, age, disability, sexual orientation, or gender identity. To the extent applicable, said persons will comply with all provisions of Executive Order No. 11246 dated September 24, 1965 and rules, regulations, orders, instructions, designations and other directives promulgated pursuant thereto. The DESIGNER, or anyone for whose act the DESIGNER may be liable, shall not act in any manner as would violate the laws, regulations and policies of the United States or the State of Utah prohibiting sexual harassment.

ARTICLE III.

PROJECT TEAM.

A. GSD REPRESENTATIVE. The GSD Representative is the person assigned by GSD to manage the Project and is the sole person authorized to act on behalf of GSD.

B. DESIGNER AND SUBCONSULTANTS.

1. Need GSD Permission to Change Organizational Chart. The DESIGNER and Subconsultants have been selected to perform the services of this Agreement because of the skills and expertise of designated key personnel. Attachment “B” to this Agreement provides the organization chart of the DESIGNER and Subconsultants. The identified persons and entities in the organizational chart cannot be changed without advance written approval by GSD.

2. DESIGNER’S Representative. The DESIGNER’S Designated Representative identified in the organization chart is and shall be authorized to act on the DESIGNER’s behalf and bind the DESIGNER in regard to the Project.

ARTICLE IV.

GSD RESPONSIBILITIES AND RIGHT TO EVALUATE DESIGNER

A. GSD RESPONSIBILITIES. Unless otherwise expressly agreed herein, GSD shall at its sole cost and expense shall:

1. Place advertisements for bids or proposals;

2. Conduct bid or proposal openings and interviews;

3. Timely provide and update DESIGNER with available “public” information in GSD’s possession regarding the Project, including but not limited to, legal descriptions, topographic surveys, ALTA or other boundary surveys, utility surveys, record drawings, reports, project objectives, budgets, and other material requirements and limitations.

4. Notify DESIGNER of any known fault, known defect, or known deficiency in the Project, including but not limited to acts, errors, omissions, or inconsistencies in DESIGNER’S services and Deliverable Instruments of Service. Notwithstanding this provision, any failure to notify the DESIGNER, shall not relieve the DESIGNER of any responsibility or liability for such fault, defect or deficiency.

5. The GSD Representative shall timely render decisions so as to avoid unreasonable delays in the orderly progress of the Project.

B. PERFORMANCE EVALUATION OF DESIGNER. The GSD may conduct a performance evaluation of the DESIGNER’S services, including specific personnel of DESIGNER or any Subconsultant at any time. Results of any evaluation will be made available to the DESIGNER upon request.

ARTICLE V.

SCOPE OF DESIGNER’S BASIC SERVICES.

A. IN GENERAL. The DESIGNER’S Basic Services consist of those described in this Agreement, the Supplemental General Conditions, General Conditions, and Design Standards, and include normal structural, mechanical, electrical, and architectural as well as other consulting services reasonably necessary to fulfill the DESIGNER’S duties under this Agreement. Any additional scope of service requirements are provided in Attachment "A" and the Design Standards.

1) Incidental Services/Reimbursements. DESIGNER shall provide all services incidental to the DESIGNER’S identified Basic Services as established by standard professional custom and practice. The Consultant reimbursements for this project have been estimated as a NOT-TO-EXCEED part of the fee and are allowed (with no mark-up) as follows:

a) Miscellaneous: e.g. express mail, photos, long distance calls. An original invoice must be submitted for each item. Exceptions to the above shall be approved by GSD in writing.

2) Direction from GSD Representative Only. DESIGNER has neither the responsibility nor the authority to accept directives or determinations from any person other than the GSD Representative. The DESIGNER shall not take any direction from Contractor or any other third party’s representative.

3) Review Requests for Information. The DESIGNER shall review properly prepared and timely Requests for Information by the Contractor.

4) Issue DSI’s and Designer’s Drawings and Specifications. If approved by the GSD Representative, the DESIGNER shall issue a DSI, and prepare, reproduce, and distribute supplemental and/or corrected drawings and/or specifications in response to Requests for Information by the Contractor.

B. SCHEMATIC DESIGN PHASE.

1) Review Program and Statement of Scope. The DESIGNER shall review the program or other "statement of scope" furnished by GSD to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the GSD Representative. The term "program" as referred to in this Agreement shall be deemed to include any "statement of scope" provided by GSD.

2) Preliminary Evaluation. The DESIGNER shall provide a preliminary evaluation of GSD's program, schedule and construction budget requirements.

3) Documents and Drawings.

a) Based on the mutually agreed upon program, or scope of work, schedule and construction budget requirements, the DESIGNER shall prepare, for written approval by GSD, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components.

b) The Schematic Design Documents shall comply with this Agreement and the Design Standards.

c) The Schematic Design narrative shall include the DESIGNER’s proposed design and construction budget which shall be within the GSD budget provided to the DESIGNER.

4) Alternative Approaches. The DESIGNER shall review with GSD, alternative approaches to design and construction of the Project. Several options shall be submitted for GSD’s evaluation.

5) Land Use Approval Assistance. The DESIGNER shall cooperate with GSD in obtaining applicable permits, and land use approvals, so as to allow for construction of the Project. However, appearances as an expert as well as the preparation of necessary drawings, visual aids and any other design work solely prepared for an appearance with zoning boards or planning commissions or other governmental meetings or hearings, shall be considered as Additional Services, if not included in Attachment "A".

C. DESIGN DEVELOPMENT PHASE.

1) General Description of Design Development Submittal. DESIGNER shall prepare, for written approval by the GSD Representative, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. The narrative shall include the DESIGNER’S proposed design and construction budget which shall be within the GSD budget provided to the DESIGNER. The Design Development submittals shall comply with the following:

a) The GSD approved Schematic Design Documents and any adjustments authorized by GSD in the program, scope of work, schedule or construction budget; and

b) The provisions of this Agreement and the Design Standards.

2) Authorization to Proceed Required in Writing from GSD. The DESIGNER may proceed on and be paid for Design Development work only after a written authorization to proceed to the Design Development Phase is provided by the GSD Representative.

D. CONSTRUCTION (CONTRACT) DOCUMENTS PHASE.

1) General Description of Construction Documents Submittal. DESIGNER shall prepare, for written approval by the GSD Representative, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project. The narrative shall include the DESIGNER’S proposed design and construction budget which shall be within the GSD budget provided to the DESIGNER. The DESIGNER shall advise GSD of any adjustments to previous preliminary estimates of construction cost indicated by changes in requirements or general market conditions. The Construction Documents shall comply with the following:

a) The GSD approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by GSD;

b) The Construction Documents shall comply with and identify all applicable codes, tests and inspections; and

c) The provisions of this Agreement and the Design Standards.

2) Authorization to Proceed Required in Writing from GSD. The DESIGNER may proceed on, and be paid for, Construction Documents work only after a written authorization to proceed to the Construction Documents Phase is provided by the GSD Representative.

3) Assistance with Procurement Documents. The DESIGNER shall assist GSD in the preparation of the necessary procurement documents to obtain a Contractor and other entities needed to complete the Project.

4) Assist with Filing for Governmental Approval. When requested by GSD, DESIGNER shall assist GSD in preparation and filing of documents required for the approval of governmental authorities having jurisdiction over the Project.

E. PROCUREMENT OR NEGOTIATION PHASE.

1) In General. The DESIGNER, after written authorization is provided by the GSD Representative, shall assist GSD in obtaining bids or negotiated proposals and assist in awarding contracts for construction.

2) Pre-Bid (including pre-proposal) Conference. The DESIGNER shall attend any pre-bid conference as requested by GSD. GSD shall control all advertising, bid openings, publishing of bid results, and awarding of the Contract.

3) Available for Interpretations. The DESIGNER shall at all reasonable times be available personally or have available, a responsible member of its staff to make such interpretations of the Construction Documents as are necessary to facilitate completion of the construction contract.

F. CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT.

1) Commencement and Termination. The DESIGNER’S responsibility to provide Basic Services for the Construction Phase commences with GSD’s written authorization to proceed to this Phase and terminates upon the completion of the warranty period of the Contractor’s work, unless extended by written agreement of the DESIGNER and GSD. Any final payment made prior to the end of the warranty period does not terminate DESIGNER’S obligation to provide full performance of the DESIGNER’S services throughout the warranty period for the fee already paid for basic services.

2) DESIGNER’s General Assistance During Construction and One-Year Warranty Period. DESIGNER shall advise and assist GSD (1) during the Construction Phase, and (2) during the period of the Contractor's warranty obligations under the Contract Documents. During the One-Year Warranty Period, the DESIGNER shall make a qualified representative available to answer questions and to perform a 1-year warranty walk through. DESIGNER shall have authority to act on behalf of GSD only to the extent provided in this Agreement unless otherwise modified in writing by GSD and DESIGNER. The DESIGNER shall be liable for any representations made by the DESIGNER or anyone for whose acts the DESIGNER may be liable, not consistent with the provisions of the Contract Documents, unless GSD has given written approval in advance.

3) Site Visits.

a) In General. Site visits shall be conducted in accordance with Attachment “A” and the Contract Documents.

b) Compliance with Contract Documents, Reporting Defects and Deficiencies. Site visits shall require the DESIGNER to examine the Work of the Contractor in progress to assist GSD in identifying any lack of compliance with the Construction Documents, defects or deficiencies in the Work and to determine whether the Work is proceeding in a manner such that, when completed, will likely be in accordance with the Construction Documents. Except as may otherwise be provided in Attachment “A”, the DESIGNER’S on-site construction-phase services:

i) are not full-time, continuous, or exhaustive,

ii) do not include a duty to discover latent defects in the Work,

iii) do not constitute a guarantee of the DESIGNER’S Work or relieve the Contractor of its responsibilities, and

iv) DESIGNER is not responsible for the Contractor’s selected means, methods, or sequences of work. The DESIGNER shall cooperate and assist GSD in enforcement of the Construction Documents. The DESIGNER shall promptly report known or obvious defects to GSD. This provision does not relieve the Contractor of its responsibility to comply with the Construction documents.

c) Written Report. DESIGNER shall promptly submit to GSD a written report subsequent to each site visit.

d) Limitations. DESIGNER shall not be required to make exhaustive or continuous on-site inspections or observations to check the quality or quantity of the Work unless specified elsewhere in this Agreement including the Attachment(s).

4) Submittals. Contractor Submittals shall be addressed in accordance with the Contract Documents.

5) Modifications. DESIGNER shall prepare Change Orders, or Construction Change Directives, with supporting documentation and data for GSD's approval and execution in accordance with the Contract Documents, and may issue DSIs not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. DSIs must be approved by the GSD Representative prior to being issued. When approved by GSD, the DESIGNER shall prepare Statements of Justification, detailed cost and time estimates of the proposed change in the work, Requests for Proposals, Construction Change Directives, and Change Orders. DESIGNER shall prepare, reproduce, and distribute Drawings and Specifications to completely describe Work to be added, deleted, and/or modified. The preparation of all such documentation shall not be considered additional services unless the change in the Work is determined by GSD to be a scope change and/or an unknown condition.

6) Record Drawings (As-Builts). The DESIGNER shall monitor the Contractor’s efforts to regularly update the redline drawings during construction. Upon completion of the Construction Phase, DESIGNER shall prepare Record Drawings based upon redline construction drawings and/or other information provided by Contactor. DESIGNER has no duty to verify the accuracy or completeness of said information and, unless DESIGNER knows that said information is on its face inaccurate and/or incomplete, DESIGNER is entitled to rely upon said information in preparing Record Drawings. If and to the extent DESIGNER knows that said information is on its face inaccurate and/or incomplete, DESIGNER shall promptly advise GSD in reasonable detail of the inaccurate and/or incomplete information. Subject to said obligation to advise and its obligation to transcribe the Contractor’s redline construction drawings and/or other information provided by Contractor in a manner consistent with the Standard of Care, DESIGNER makes no representation regarding the accuracy or completeness of its Record Drawings. Record Drawings shall specifically include the following deliverables:

a) One electronic USB flash drive (a.k.a. thumb drive/pen drive/jump drive) or other approved digital data storage device containing a copy of the Record Drawings in both Portable Document Format (.PDF) and AutoCAD (.dwg file extension) formats;

b) One hard (physical) copy of full-size drawings printed on Tyvek paper.

7) Review Process. DESIGNER shall comply with any review process required by GSD. DESIGNER shall make submissions to the reviewing entity in a timely manner so as not to delay the reviewing entity.

8) Specific Delay Liability of DESIGNER. The DESIGNER shall be liable to GSD for damages incurred to GSD as a result of impact on the Contractor’s critical path schedule to the extent due to DESIGNER’S error, act or omission.

9) Notification of Impacts on Critical Path. The DESIGNER shall promptly notify GSD in writing of facts, events or circumstances of which the DESIGNER is or should be aware and which have or likely will adversely impact the critical path schedule.

ARTICLE VI

DELIVERABLE INSTRUMENTS OF SERVICE

A. DEFINED. “Deliverable Instruments of Service” as used in this Agreement shall mean the drawings, specifications, addendum, attachments, calculations, manuals, reports, official project meeting minutes, project observation reports and/or other information, regardless of medium, identified in and required to be delivered or submitted to GSD under this Agreement.

B. OWNERSHIP. It is acknowledged and agreed that all documents developed pursuant to this Agreement are Instruments of Service. Deliverable Instruments of Service are the sole property of GSD. GSD shall have unlimited rights, for the benefit of GSD, in all said deliverable instruments of service, including, but not limited to use, re-use, modification, and transferability for reference only related to the site.

C. PROMOTIONAL ISSUES. The DESIGNER shall have the right to include photographic or artistic representations of the design of the Project among the DESIGNER’S promotional and professional materials, provided that the DESIGNER appropriately gives recognition to GSD regarding the Project. The DESIGNER shall be given reasonable access to the completed Project to make such representations. However, the DESIGNER’S materials shall not include GSD confidential or proprietary information. GSD may provide professional credit for the DESIGNER in GSD’s promotional materials relating to the Project. Except to the extent related to the DESIGNER’S defense of any statements made by others in regard to the DESIGNER’s performance, and notwithstanding any other provision of this Agreement, the DESIGNER shall not make any public information release in connection with services performed under this Agreement without the advance written approval of the GSD Representative.

D. LICENSE. DESIGNER hereby grants GSD a nonexclusive license for governmental purposes to any copyrighted portion of Deliverable Instruments of Service. Such license shall include, but not be limited to, the right to use and reuse such copyrighted materials to construct the buildings, facilities, or other matters covered by such copyrighted materials for additional use and to license such copyrighted materials for reuse. GSD’s rights and licenses in and to said Deliverable Instruments of Service are conditioned upon DESIGNER receiving all sums related to GSD approved deliverables due under this Agreement.

E. INDEMNIFICATION RELATED TO CERTAIN GSD’S ACTION WITH DELIVERABLES. GSD’s use on other projects, GSD’s re-use, or GSD’s modification of the Deliverable Instruments of Service shall be at GSD’s sole risk and without recourse against DESIGNER, its Subconsultants at any tier, and their principals, agents and employees. GSD shall hold harmless and indemnify DESIGNER, its Subconsultants at any tier and their respective principals, agents and employees from and against any and all actions, claims, loss, or damages of any nature whatsoever to the extent related to and resulting from any said use, re-use, or modification of all or any portion of the Deliverable Instruments of Service by or on behalf of GSD, or under any license issued by, through, or on behalf of GSD, irrespective of any actual or alleged fault on the part of the indemnitee(s). Under no circumstances shall DESIGNER be indemnified for the use of the Deliverable Instruments of Service for the Project that is the subject of this Agreement.

F. ACCESS TO DELIVERABLES. DESIGNER, for a period of three (3) years after completion of the Project, agrees to furnish and to provide access to all the aforesaid Deliverable Instruments of Service upon the request of GSD. GSD shall pay all costs for labor, reproduction and/or shipping of requested documents. GSD agrees to make no demand on DESIGNER for responsibility for GSD use of such material for any other GSD work which is not the subject of an Agreement between GSD and the DESIGNER for such use.

G. STAMP. If the DESIGNER is not the same DESIGNER commissioned for the project within the Deliverable Instruments of Services, GSD shall reasonably remove all indications of authorship, including the title blocks, names, initials, signatures, and professional stamps of DESIGNER, its Subconsultants at any tier, and their agents and employees.

ARTICLE VII.

COMPENSATION, PAYMENTS TO THE DESIGNER, AND DAMAGES

A. FEES IN ATTACHMENT “A.” Payment shall be in accordance with the schedule of lump sum payments for each phase listed under this Agreement as shown in the Schedule of DESIGNER’S and Subconsultant Fees (Attachment “A”). Progress payments with respect to such lump sum amounts shall be based upon percentage of such services completed.

B. PAYMENT IN FULL. The fee for any particular phase or activity described in Attachment “A” shall be the full payment owing by GSD for such phase or activity.

C. WITHHOLDING OF PAYMENT; LIABILTY OF EXCESS OWING. Should the DESIGNER fail to perform any of its obligations hereunder, be in default of this Agreement, or otherwise fail to complete the services of this Agreement within the time established by the Project Schedule (Attachment “A”), the DESIGNER shall be liable to GSD for the actual damages incurred and such amount may be deducted from any amount due or that may become due the DESIGNER. To the extent that the damages exceed any amount that would otherwise be due the DESIGNER, the DESIGNER shall be liable for such excess to GSD. GSD may seek enforcement of such obligation by legal action, and if such is necessary, shall recover the related costs and attorneys’ fees. Notwithstanding the above, GSD agrees that the DESIGNER is not responsible for damages arising directly or indirectly from any delays for causes beyond the DESIGNER’S control.

D. OTHER PREREQUISITES TO RECEIVE PAYMENT: In addition to any other requirements under this Agreement, the following is required before any payment shall be made and/or deemed owed by GSD:

1) Invoices. The DESIGNER shall submit invoices for progress payments not more than once a month. Invoices shall include the GSD project and contract number, and be signed by the DESIGNER. Each invoice shall include a detailed description by line item showing the contract prices, percentage of the services completed for the period, payments received to date, payment requested for the period, the overall percentage of completion, any lien waivers or releases previously requested by GSD.

2) Adjustments of Progress Payments. GSD may, at its discretion, adjust any progress payments so that it corresponds to the percentage of completion as estimated by GSD. Notice shall be given to the DESIGNER prior to making any such adjustments.

E. ACCEPTANCE OF FINAL PAYMENT. The acceptance by the DESIGNER of final payment without a written protest filed with GSD within three (3) days of receipt of final payment shall release GSD from all claims and all liability to the DESIGNER for fees and costs of the performance of the services pursuant to this Agreement.

F. INTEREST ON LATE PAYMENTS. Except as otherwise provided by law, if any payment is late based upon the provisions of this Agreement, the DESIGNER shall be paid interest in an amount equal to the published Wall Street Journal prime rate plus 2%. The published Wall Street Journal Prime Rate shall be determined using such rate that is published closest to the 1st of the month for each month of the late period. The amount of payment of interest shall be apportioned using such rate(s) for the late period.

ARTICLE VIII.

REQUIREMENTS FOR ADDITIONAL SERVICES.

A. ADDITIONAL SERVICES; IN GENERAL.

1) Not Allowed when Correcting an Error, Omission or is Already Part of this Agreement. Notwithstanding any provision of this Agreement, the DESIGNER shall not be entitled to any additional compensation or to have any work considered as an additional service when such work is being performed in order to resolve an error or omission of the DESIGNER or is otherwise required to meet the terms of this Agreement.

2) Written Modification in Advance of Work Required. The DESIGNER shall perform additional services only when authorized by a written modification to this Agreement in advance of the performance of the subject work. Failure of the DESIGNER to obtain a written approval from GSD of the cost and authorization to proceed shall result in the DESIGNER’S forfeiture of the right to seek additional compensation for the contended additional service. DESIGNER shall have no obligation to—and shall not—begin or provide any additional services unless and until such written modification has been provided by GSD.

ARTICLE IX.

INSURANCE AND INDEMNIFICATION

A. INSURANCE. To protect against liability, loss and/or expense arising in connection with the performance of services described under this Agreement, the DESIGNER shall obtain and maintain in force during the entire period of this Agreement without interruption, at its own expense, the following stated insurance from insurance companies authorized to do business in the State of Utah, in a form and content satisfactory to GSD, and rated “A-” or better with a financial size category of (a) Class X or larger where the applicable Construction Budget is one million dollars ($1,000,000) or greater; or (b) Class VII or larger where the applicable Construction Budget is under $1,000,000. All said ratings and financial size categories shall be as published by A.M. Best Company at the time this Agreement is executed. The DESIGNER shall require all Subconsultants to have and maintain similarly required policies. All of the following listed insurance coverages shall be provided by the DESIGNER:

1) DESIGNER’S Professional Liability Insurance. The DESIGNER shall maintain a policy on a claims made basis, annual aggregate policy limit based on the following chart, unless modified in Attachment "A” to this Agreement.

$4,000,000 aggregate

$2,000,000 aggregate

$1,000,000 aggregate

$500,000 aggregate

GSD reserves the right to require additional coverage from that set forth in the chart above, at GSD's expense for the additional coverage portion only. GSD also reserves the right to require project specific insurance, and if such right has been exercised it shall be indicated as an exhibit to this Agreement. Unless project specific insurance is required by GSD, the coverage may be written under a practice policy with limits applicable to all projects undertaken by DESIGNER’S firm (if applicable) but must be maintained in force for the discovery of claims for a period of three (3) years after the date final payment is made to the DESIGNER under this Agreement. All policies provided by the DESIGNER must contain a "retroactive" or "prior-acts" date which precedes the earlier of the following:

(a) the date of the DESIGNER’S Agreement or

(b) the commencement of the DESIGNER’S services. The DESIGNER’S policy must also include contractual liability coverage applicable to the indemnity provision of this Agreement for those portions of the indemnity provisions that are insured under the DESIGNER’S policy and in accordance with this Agreement, including the Attachments hereto.

2) Commercial General Liability Insurance. DESIGNER shall provide, at its own expense, Commercial General Liability Insurance, on an “occurrence basis”, including insurance for premises and operations, independent Subconsultants, projects/completed operations, and contractual liability coverage, including specifically designating the indemnity provisions of this Agreement as an insured contract on the Certificate of Insurance. Such Commercial General Liability Insurance must provide coverage for explosion, collapse and underground hazards. Insurance required by this paragraph shall provide for limits that are not less than the following:

3) Workers' Compensation Insurance and Employers' Liability Insurance. Worker’s Compensation Insurance shall cover full liability under the Worker’s Compensation Laws of the jurisdiction in which the Project is located at the statutory limits required by said jurisdiction’s laws.

4) Automobile. Automobile liability insurance for claims arising from the ownership, maintenance, or use of a motor vehicle. The insurance shall cover all owned, non-owned, and hired automobiles used in connection with the work, with the following minimum limits of liability: $1,000,000 – Combined Single Limit Bodily Injury and Property Damage Per Occurrence.

5) Valuable Papers and Records Coverage and Electronic Data Processing (Data and Media) Coverage. The DESIGNER and all Subconsultants of the DESIGNER shall provide coverage for the physical loss of or destruction to their work product including drawings, specifications and electronic data and media.

6) Aircraft Use. DESIGNER using its own aircraft or employing aircraft in connection with the work performed under this Agreement shall maintain Aircraft Liability Insurance with a combined single limit of not less than $1,000,000 per occurrence. Said certificate shall state that the policy required by this paragraph has been endorsed to name GSD as Additional Insureds.

7) Certificates. Before this Agreement is executed, the DESIGNER shall submit certificates in form and substance satisfactory to GSD as evidence of the insurance requirements of this Article. Such certificates shall contain provisions that no cancellation or non-renewal shall become effective except upon thirty (30) days prior written notice by US Mail to GSD as evidenced by return receipt, certified mail sent to GSD. The DESIGNER shall notify GSD within thirty (30) days of any claim(s) against the DESIGNER which singly or in the aggregate exceed 20% of the applicable required insured limits and the DESIGNER shall, if requested by GSD, use its best efforts to reinstate the policy within the original limits and at a reasonable cost. GSD shall be named as an insured party, as primary coverage and not contributing, on all the insurance policies required by this Article except the professional liability and workers' compensation policies. GSD reserves the right to request the DESIGNER to provide a loss report from its insurance carrier.

8) Maintain Throughout Agreement Term. The DESIGNER agrees to maintain all insurance required under this Agreement during the required term. If the DESIGNER fails to furnish and maintain said required insurance, GSD may purchase such insurance on behalf of the DESIGNER, and the DESIGNER shall pay the cost thereof to GSD upon demand and shall furnish to GSD any information needed to obtain such insurance.

9) Waivers of Subrogation. All policies required, except Practice Professional Liability Insurance and Workers Compensation Insurance, shall be endorsed to include waivers of subrogation in favor of GSD.

10) Excess Coverages. Any type of insurance or any increase of limits of liability not described in this Agreement which the DESIGNER requires for its own protection or on account of any statute, rule or regulation, shall be its own responsibility and at its own expense.

11) Not Relieve DESIGNER of Liability. The carrying of any insurance required by this Agreement shall in no way be interpreted as relieving the DESIGNER of any other responsibility or liability under this Agreement or any applicable law, statute, rule, regulation or order.

12) DESIGNER Compliance with Policies. DESIGNER shall not violate or knowingly permit to be violated any of the provisions of the policies on insurance required under this Agreement.

B. INDEMNIFICATION

1. “Indemnitees” as that term is used in this Article IX-B means GSD, its board of education, other elected or appointed officers, employees, agents, and authorized volunteers.

2. “DESIGNER” as that term is used in this Article IX-B, means the DESIGNER, its Subconsultants at any tier, or any of their agents, employees including those employed directly or indirectly, or other persons or entities for whose acts the DESIGNER or its Subconsultants at any tier may be liable.

3. Indemnification Requirements.

a. DESIGNER’s Indemnification of Indemnitees. The DESIGNER agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Indemnitee, its officers, directors and employees (collectively, INDEMNITEES) against all damages or liabilities, to the extent caused by the DESIGNER’s negligent performance of professional services under this Agreement and that of its subconsultants or anyone for whom the DESIGNER is legally liable.

b. Indemnitee’s indemnification of DESIGNER. The INDEMNITEE agrees, to the fullest extent permitted by law, to indemnify and hold harmless the DESIGNER, its officers, directors, employees and subconsultants (collectively, DESIGNER) against all damages or liabilities, to the extent caused by the INDEMNITEE’s negligent acts, errors or omissions in connection with the Project as well as the acts, errors or omissions of its contractors, subcontractors or consultants or anyone for whom the Indemnitee is legally liable.

c. Indemnification for party’s own negligence. Neither the INDEMNITEE nor the DESIGNER shall be obligated to indemnify the other party in any manner whatsoever for the other party’s own negligence.

d. Defense by DESIGNER. DESIGNER shall defend all actions brought upon such matters to be indemnified hereunder and pay all costs and expenses incidental thereto, but GSD shall have the right, at its option and its own expense, to participate in the defense of any such action without relieving the DESIGNER of any obligation hereunder. DESIGNER shall be reimbursed by GSD for DESIGNER’S reasonable costs and expenses incurred under this provision to the extent such costs and expenses relate to the fault of GSD and not the DESIGNER.

e. Not Affect Other Indemnification Rights or Obligations. Such obligation 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 under this Agreement.

f. Not Affected by Workmen’s Compensation or Certain Benefit Acts. In claims against any person or entity indemnified under this paragraph by the DESIGNER, the indemnification obligation under this paragraph shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for the DESIGNER under workers' or workmen's compensation acts, disability benefits acts, or other employee benefit acts.

g. Effect of Written Directives by GSD. Notwithstanding any of the above, to the extent DESIGNER is complying with a written directive from GSD, which directive is not based on the DESIGNER’S recommendation, the DESIGNER shall not be held liable under the indemnification provisions of this Agreement if the DESIGNER has promptly disagreed with the written directive by delivering such objection to GSD in writing.

h. Specific Waiver for Damages Covered by Builder’s Risk. GSD and DESIGNER waive all rights against each other for damages, but only to the extent covered by the State of Utah's Builder's Risk Policy concerning damage to the Work during construction, except such rights as they may have to the proceeds of such insurance as set forth in the General Conditions. GSD and DESIGNER each shall require similar waivers from their Subconsultants and agents at any tier.

ARTICLE X.

LIMITATIONS OF ACTIONS

A. STATUTE OF LIMITATION AND STATUTE OF REPOSE. An action by or against the DESIGNER, the DESIGNER’S Subconsultant, agent, independent Subconsultant, or anyone for whose acts the DESIGNER may be liable, shall comply with and be bound by the applicable and lawful statute of limitation and statute of repose provisions. Notwithstanding this, any action by or against the DESIGNER, the DESIGNER’S Subconsultant, agent, independent Subconsultant, or anyone for whom the DESIGNER may be liable, that is based in contract or warranty shall be commenced within six (6) years of the date of substantial completion of the improvement or abandonment of construction except that such period of limitation shall be modified as follows:

1. Fraudulent Concealment. In the event that the DESIGNER, the DESIGNER’S Subconsultant, agent, independent Subconsultant, or anyone for whom the DESIGNER may be liable has fraudulently concealed the act, error, omission or breach of duty, or the injury, damage or other loss caused by the act, error, omission or breach of duty, the six-year period shall not begin to run until such time as GSD discovers or, through the exercise of reasonable diligence, should have discovered its claim.

2. Willful and Intentional. In the event that the DESIGNER, the DESIGNER’S Subconsultant, agent, independent Subconsultant, or anyone for whom the DESIGNER may be liable commits a willful or intentional act, error, omission, or breach of duty, the six-year period shall not begin to run until such time as GSD discovers or, through the exercise of reasonable diligence, should have discovered its claim.

3. Unintentional and Nonfraudulent Latent Acts, Errors, Omissions or Breaches of Duty. In the event of an unintentional and nonfraudulent latent act, error, omission or breach of duty, GSD shall have the time period allowed by Utah law and the Utah Code, unless a longer period is provided for in an attachment to this Agreement.

4. “Different Period of Limitation” from Utah Code. These provisions are understood and agreed to by the DESIGNER as establishing a "different period of limitations" as that terms is used in Title 78B, Chapter 2 of the Utah Code, addressing statutes of limitations or any other similar statute of the Utah Code. These provisions are not intended to shorten any time period allowed by Utah law for non- contract actions, including but not limited to, those based in tort.

ARTICLE XI.

PRELIMINARY RESOLUTION EFFORTS, CLAIMS AND DISPUTES

A. GENERAL CONDITIONS REQUIREMENTS APPLY. The provisions of Articles 4.3 through and including 4.10 of the General Conditions shall apply to Preliminary Resolution Efforts, Claims and Disputes under this Agreement. Unless inconsistent with the provisions of this Agreement, definitions in the General Conditions shall apply to this Agreement.

B. TIME FOR FILING. Notwithstanding paragraph A above, DESIGNER must file any PRE in writing with GSD Representative within twenty-one (21) days of any of the following:

1. Issuance of a denial by GSD of a DESIGNER request for additional monies or other relief under this Agreement; or

2. When the DESIGNER knows or should have known about any other issue where the DESIGNER seeks additional monies, time or other relief from GSD.

C. NOT LIMIT GSD…