§ 13-8-7 — Contract for design professional services -- Agreements to indemnify.

(1) As used in this section:

(1)(a) "Design professional" means:
(1)(a)(i) an individual licensed under:

(1)(a)(i)(A) Title 58, Chapter 3a, Architects Licensing Act;
(1)(a)(i)(B) Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing Act; or
(1)(a)(i)(C) Title 58, Chapter 53, Landscape Architects Licensing Act; or
(1)(a)(ii) a nongovernmental entity engaged in the business of providing services that require a license described in Subsection (1)(a)(i).
(1)(b) "Design professional services" means:
(1)(b)(i) professional services within the scope of the practice of architecture as defined in Section 58-3a-102;
(1)(b)(ii) professional engineering or professional land surveying as defined in Section 58-22-102; or
(1)(b)(iii) professional services within the scope of the practice of landscape architecture as defined in Section 58-53-102.
(1)(c) (1)(c)(i) "Design professional services contract" means a contract under which a design professional agrees to provide design professional services:

(1)(c)(i)(A) to a governmental entity; or
(1)(c)(i)(B) for an improvement owned or to be owned by a governmental entity.
(1)(c)(ii) "Design professional services contract" does not include a construction contract, as defined in Section 13-8-1.
(1)(d) "Indemnification provision" means a covenant, promise, agreement, or understanding in, in connection with, or collateral to, a design professional services contract that requires the design professional to:
(1)(d)(i) indemnify or hold harmless any person from or against liability for damages other than liability for damages to the extent caused by or resulting from:

(1)(d)(i)(A) the design professional's breach of contract, negligence, recklessness, or intentional misconduct; or
(1)(d)(i)(B) the design professional's subconsultant's negligence;
(1)(d)(ii) defend any person from or against a claim alleging liability for damages, including a claim alleging:

(1)(d)(ii)(A) the design professional's breach of contract, negligence, recklessness, or intentional misconduct; or
(1)(d)(ii)(B) the design professional's subconsultant's negligence; or
(1)(d)(iii) reimburse any person for attorney fees or other costs incurred by the person in defending against a claim alleging liability for damages, except to the extent the attorney fees or costs were incurred due to:

(1)(d)(iii)(A) the design professional's breach of contract, negligence, recklessness, or intentional misconduct; or
(1)(d)(iii)(B) the design professional's subconsultant's negligence.
(1)(e) "Governmental entity" means the same as that term is defined in Section 63G-7-102.
(1)(f) "Improvement" means the same as that term is defined in Section 78B-2-225.
(1)(g) "Subconsultant" means a person with whom a design professional contracts to provide a service related to or part of the design professional services that the design professional agrees to perform under a design professional services contract.
(2) An indemnification provision is void.
(3) (3)(a) A design professional shall perform design professional services under a design professional services contract consistent with the professional skill and care ordinarily provided by other design professionals:
(3)(a)(i) with the same or similar professional license; and
(3)(a)(ii) providing the same or similar design professional service:

(3)(a)(ii)(A) in the same or similar locality;
(3)(a)(ii)(B) at the same or similar time; and
(3)(a)(ii)(C) under the same or similar circumstances.
(3)(b) (3)(b)(i) Except as provided in Subsection (3)(b)(ii), a design professional services contract may not establish a standard of care different from the standard of care described in Subsection (3)(a).
(3)(b)(ii) A design professional services contract may require a design professional to perform design professional services consistent with a specialized design expertise if the nature of the project that is the subject of the design professional services contract reasonably requires the specialized design expertise.
(3)(c) A provision in a design professional services contract that purports to waive or conflicts with a provision of Subsection (3)(b) is void.
(4) The provisions of this section apply to a design professional services contract executed on or after May 8, 2018.

Legislative History

Enacted by Chapter 222, 2018 General Session