Gail S. Kelley is licensed attorney in Massachusetts, Maryland and D.C. She is the author of “Construction Law: An Introduction for Engineers, Architects, and Contractors” (gail.kelley.esq@gmail.com).
How it may affect the profession. Part 3
Parts 1 and 2 of this series were previously published in the May and July issues of STRUCTURE. Part 1
provided a general overview of how climate change could impact an engineer’s services; Part 2 looked at the engineer’s professional standard of care. This final article looks at contractual provisions that could help to protect engineers against allegations that they failed to address climate change in their designs.
It is almost impossible to open a magazine, pick up a newspaper or listen to the news without seeing a reference to climate change and its effects. Unfortunately, the issue has become very politicized, in part because of the tremendous amounts of money at stake.
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While previous articles in STRUCTURE have looked at specific contract provisions – for example, the Waiver of Consequential Damages in the November 2021 issue – this article discusses contracts in general.
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While a waiver of consequential damages clause is considered a contractual risk management tool, how these provisions manage risk is not always clear. One reason is that potential consequential damages for one or both parties can vary from virtually nothing to many times the contract amount, depending on the project. Engineers often ask whether they should agree to waive their consequential damages, and likewise, whether they should require the other party to waive their consequential damages. The answer, as is common in contract negotiations, is “it depends.”
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Although most engineers in the U.S. have at least a passing acquaintance with American Institute of Architects (AIA) documents, few seem familiar with FIDIC documents. Because FIDIC documents are often used on construction projects where the participants are from different countries, engineers pursuing international projects would do well to learn about them.
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The previous article in this series (STRUCTURE, November 2018) looked at the concept of indemnification. Stated simply, to indemnify someone means to financially protect them against specified claims from third parties. The party providing the financial protection (the “Indemnitor”) can be required to pay the amount of an award or settlement for a claim in place of the party being protected (the “Indemnitee”), or reimburse the Indemnitee for amounts the Indemnitee has already paid. …
Indemnification obligations are an important part of almost every design agreement. Stated simply, to indemnify someone means to financially protect them against specified claims. The party providing the financial protection (the “Indemnitor”) can be required to pay the amount of a judgment or settlement that is owed by the other party (the “Indemnitee”), or more commonly, can be required to reimburse the Indemnitee for costs the Indemnitee has incurred because of the specified claims. …
Part 1 and 2 of this series (STRUCTURE, February and March 2018) provided an overview of both governing law provisions and forum and venue selection provisions. A governing law provision, also referred to as a choice of law provision, specifies that the law of a designated jurisdiction will govern disputes arising out of the agreement, regardless of where the dispute is adjudicated. …
Design agreements often contain a governing law provision which specifies that the laws of a designated jurisdiction will govern any disputes arising from the agreement. Likewise, design agreements often contain forum or venue selection provisions that specify where the adjudication of any disputes will take place. …