Contract Guide for Design Professionals

© 2012 by ConstructionRisk, LLC and Zurich American Insurance Company.  Author:  J. Kent Holland
This Contract Guide was written by Kent Holland for Zurich North America as part of the design professional risk management services offered to insureds of Zurich North America Commercial Markets.  It includes discussions addressing 50 contract clauses. While these are not all the clauses that may be included in a contract, they are the ones that I have found historically to cause the greatest liability concerns.

In some sections we address the subject with only a short discussion and an example clause to demonstrate the points made. In other sections, we describe potential problems and solutions in more detail and review multiple examples of possible contract clauses. In some sections we have included examples of one-sided language from contracts generated by owner/clients.

This is to familiarize the reader with potential problem language to look for when reviewing a contract that has been generated by the owner.

The samples of one-sided contract language present major risk management problems and will likely foster poor relations between the clients and design professionals. Both the client and the professional consultant would be well advised instead to seek a more appropriate and balanced allocation of risk.

In selecting the clauses for this guide, I chose among a database of many contracts that I have reviewed over the years. They are not intended to represent “the best” clauses from the Consultant’s perspective, but are simply representative clauses for the subjects discussed. We reiterate that the clauses are presented solely for educational purposes and to help facilitate an understanding of the issues discussed.

These clauses are not intended to be used in any particular contract and we make no representation that this language is appropriate for use in all your contracts. You should have legal counsel advise you on what language is appropriate for your contract, on your particular project, and in the specific state where the project is located. State laws, public policy and industry custom may affect how any clause is interpreted and applied in any given situation.