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).
In the best of all possible worlds, engineers and their clients will negotiate their contract, the engineer will provide the agreed-upon services, and the client will pay the agreed-upon amount. In the real world, there is always the chance that something will go wrong, there will be a dispute, and the dispute will result in arbitration or litigation. …
An engineer’s Consent to Assignment, also referred to as an Acknowledgement and Consent, is usually drafted by the bank providing construction financing for a project. A typical consent requires the engineer to agree that the bank can exercise the rights it has acquired under an assignment from the borrower (the owner); among these rights will be the right to assume the design agreement if the borrower defaults on its loan. …
Consent to Assignment for engineers, also referred to as an Acknowledgement and Consent or a “will-serve letter,” is usually drafted by the bank providing construction financing for a project. A typical consent requires the engineer to agree that the bank can exercise the rights it has acquired through an assignment from the owner; among these rights will be the right to assume the design agreement if the owner defaults on the construction loan. …
Consent to assignments, often referred to in the banking industry as “will-serve letters,” come in many different forms. However, at its most basic, an engineer’s Consent to Assignment is an agreement under which the engineer acknowledges that the design agreement has been assigned to the owner’s lender. …
Design agreements often stipulate that neither the owner nor the engineer can assign the agreement without the consent of the other party. As a result, the engineer may be asked to sign a “Consent to Assignment” (sometimes referred to as an “Acknowledgement and Consent”) from the bank providing the construction loan. …
The article Understanding Indemnification Clauses published in the January 2017 issue of STRUCTURE provided an overview of indemnification clauses. A second article, Understanding the Difference Between Indemnification and Insurance, published in the February 2017 issue of STRUCTURE took a closer look at indemnification clauses and compared indemnification with insurance. In both of those articles, the focus was on the indemnification obligations of the structural engineer. In this article, we will look at indemnification of the structural engineer. …
Indemnification clauses in design agreements are often considered to be “boilerplate” – something to be read quickly (if at all) after the parties have agreed on the scope of work and compensation. However, if a claim arises from the engineer’s services, an overly broad indemnification clause can create an uninsurable and potentially costly liability for the engineer. …
When design professionals review proposed contracts with their risk management consultants, they are invariably told that they should look closely at provisions that could create uninsurable risk and negotiate better language. One issue that often arises is the language of the indemnification clause. The reason for this is simple – indemnification clauses can shift significant risks to the design professional, and these risks may not be insurable. …
In enacting the Americans with Disabilities Act of 1990 (ADA), Congress found that individuals with disabilities continually encountered discrimination in the form of architectural barriers. To address this discrimination in privately-owned facilities, Title III of the ADA mandated that all commercial facilities and places of public accommodation constructed after January 26, 1993, be “readily accessible to and usable by” individuals with disabilities. …
More than one A/E has been in the uncomfortable position of having a structure that he or she designed fail an inspection due to a code-related design defect. The immediate reaction, in printable form, is often “How were the plans approved if they didn’t comply with the building code? That’s negligence on the part of the building department.” While this reaction is understandable, it doesn’t provide much support for the A/E when explaining the situation to the owner. …