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A BILL TO BE ENTITLED
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AN ACT
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relating to indemnification and duties of engineers and architects |
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under certain governmental contracts. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 271.904, Local Government Code, is |
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amended to read as follows: |
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Sec. 271.904. ENGINEERING OR ARCHITECTURAL SERVICES |
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CONTRACTS: INDEMNIFICATION LIMITATIONS; DUTIES OF ENGINEER OR |
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ARCHITECT. (a) A covenant or promise in, in connection with, or |
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collateral to a contract for engineering or architectural services |
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to which a governmental agency is a party is void and unenforceable |
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if the covenant or promise provides that a licensed engineer or |
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registered architect whose work product is the subject of the |
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contract must indemnify or[,] hold harmless[, or defend] the |
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governmental agency against liability for damage, other than |
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liability for damage to the extent that the damage is caused by or |
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results from an act of negligence, intentional tort, intellectual |
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property infringement, or failure to pay a subcontractor or |
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supplier committed by the indemnitor or the indemnitor's agent, |
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consultant under contract, or another entity over which the |
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indemnitor exercises control. |
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(b) Except as provided by Subsection (c), a covenant or |
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promise in, in connection with, or collateral to a contract for |
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engineering or architectural services to which a governmental |
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agency is a party is void and unenforceable if the covenant or |
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promise provides that a licensed engineer or registered architect |
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whose work product is the subject of the contract must defend a |
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party, including a third party, against a claim based wholly or |
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partly on the negligence of, fault of, or breach of contract by the |
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governmental agency, the agency's agent, the agency's employee, or |
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other entity, excluding the engineer or architect or that person's |
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agent, employee, or subconsultant, over which the governmental |
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agency exercises control. A covenant or promise may provide for the |
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reimbursement of a governmental agency's reasonable attorney's fees |
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in proportion to the engineer's or architect's liability. |
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(c) Notwithstanding Subsection (b), a governmental agency |
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may require in a contract for engineering or architectural services |
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to which the governmental agency is a party that the engineer or |
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architect name the governmental agency as an additional insured |
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under the engineer's or architect's general liability insurance |
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policy and provide any defense provided by the policy. |
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(d) A contract for engineering or architectural services to |
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which a governmental agency is a party must require a licensed |
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engineer or registered architect to perform services: |
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(1) with the professional skill and care ordinarily |
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provided by competent engineers or architects practicing in the |
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same or similar locality and under the same or similar |
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circumstances and professional license; and |
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(2) as expeditiously as is prudent considering the |
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ordinary professional skill and care of a competent engineer or |
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architect. |
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(e) In a contract for engineering or architectural services |
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to which a governmental agency is a party, a provision establishing |
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a different standard of care than a standard described by |
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Subsection (d) is void and unenforceable. If a contract contains a |
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void and unenforceable provision, the standard of care described by |
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Subsection (d) applies. |
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(f) In this section, "governmental agency" has the meaning |
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assigned by Section 271.003. |
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SECTION 2. Section 271.904, Local Government Code, as |
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amended by this Act, applies only to a contract for which a request |
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for proposals or a request for qualifications is first published or |
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distributed on or after the effective date of this Act. A contract |
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for which a request for proposals or a request for qualifications is |
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first published or distributed before the effective date of this |
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Act is governed by the law in effect on the date the request was |
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published or distributed, and the former law is continued in effect |
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for that purpose. |
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SECTION 3. This Act takes effect September 1, 2015. |
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