Top Ten Provisions to Have in Your Roofing Consultant Contract

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A contract is more than just a piece of paper. Having a properly worded contract can be the difference between a profitable job and a devastating loss. While there is value in every provision in a well-written contract, some clauses stand out as particularly important to help ensure that you are paid or to help protect you from unwanted liability. These are the top ten provisions to have in your roofing consultant contract:

1. Attorney's Fees.
Besides actually requiring that you are paid for your services, this may be the single most important provision in your contract. You want attorney's fees if you need to contest any provision of the contract or need to act to collect the money owed to you. Without attorney's fees, the cost of collection is often uneconomical compared to what you are owed. The attorney's fees provision gives you a stronger bargaining position because in addition to the amount you are owed, the longer the claim goes unpaid the more attorneys' fees you will be entitled to recover.

2. Indemnification.
Only agree to be responsible for damage caused by your company. Do not sign a contract where it requires your company to be responsible for damages caused by someone else. An indemnification provision ensures that the other party must reimburse you for the cost of any claims, injuries, damages, losses, costs, penalties, expenses, and fees in any way arising out of, pertaining to, or relating to the negligence, recklessness, or willful conduct that they cause in relation to your contract. What this legal jargon means is that if the other party moves a ladder at your jobsite and your employee falls and sues your company, then the other party would be liable to you for any amounts that your company incurred defending against the claim and ultimately paying on the claim.

3. Unauthorized changes in the work.
You want to make sure that your company is not liable for work it did not do. The final product that your company provides is the result of extensive time and effort. Your contract should state specifically that your company is not responsible for changes to the work or design by anyone else unless you authorized the change beforehand. This prevents other parties from coming back to your company for some issues with the project that were the result of changes that they made which you never would have recommended.

4. No promises as to final price.
With fluctuations in labor rates and material prices based on an unknowable number of factors, you should not be responsible for any estimate your company gives to be the actual final price of a repair or replacement. Your contract can prevent an attempt by your client to say that your opinion as to price was a representation that you could guarantee that price. You can avoid potential issues by having this provision explicitly stated in your contract.

5. Final confirmation of the manufacturer of the roofing systems.
While your recommendation and specifications are based upon current published standards; ultimately, you want to assert to the client that your recommendations and specifications are subject to final confirmation by the manufacturer of the roofing system selected. The manufacturer knows its products best and their final specifications should control your recommendation. By having this provision in your contract, you are making it clear that you can change your recommendation and specifications based on changes in the manufacturer's specifications.

6. No promises as to the general contractor's performance.
As you know, unless you are engaged as the general contractor, you do not want to be responsible for the general contractor's mistakes. Your contract should lay out that you make no promises as to the actual work to be performed based on your recommendation. There are too many factors involved for you to make any promises, and a client needs to know that they cannot look to your company if they have damage from the improper implementation of your company's design.

7. Reuse of your work product.
You should retain ownership over all drawings, specifications and other work product your company produces relating to a job. This means that the client cannot go out and reuse your company's work or sell it. This limitation on reuse is important because it protects your company from liability if the client uses your company's work product on another job without authorization. A provision on point will put the client on notice to not attempt to do this and should specifically require indemnification if the client's reuse of your work product causes any damage.

8. Arbitration and litigation.
Knowing the pros and cons of arbitration and litigation will allow you to determine if you want to require arbitration or litigate the matter. Arbitration is favorable if you want to keep the matter private and you want it to proceed in an expedited fashion, but it is often more expensive. Litigation is public and can be more time consuming with extensive discovery, but you are having a public judge do the job at no cost to you. Arbitration is becoming more popular for commercial disputes as you can get an arbiter who has specific construction knowledge and the matter can proceed at a faster pace. You must have an arbitration provision in your contract, otherwise the presumption is that litigation is the option for deciding disputes.

9. Hazardous substances
You should make sure that your contract contains language that specifically says that you are not responsible for the discovery, presence, handling, removal, disposal, or exposure of persons to hazardous materials. This protects you if you were to uncover asbestos in your work and makes it clear that you are in no way responsible for dealing with that situation.

10. Structural adequacy.
You should not be responsible for how your recommendations affect the current structural integrity of a project. A structural engineer is responsible for making the determination as to the structural adequacy of the building to support repairs to the roof or replacement of the roof. By having a provision on structural adequacy, you are protecting your company from potential liability if a client somehow believes that your company was responsible for this aspect of a project when, in fact, determining structural adequacy is beyond your company's scope of work and expertise.

If you have these provisions in your contract, then you are a long way towards having a strong contract that can prevent issues or prepare you for them. For the actual language of these clauses you should contact an attorney familiar with the specific legal factors in the roofing consulting industry .

Dillon Fulcher is an Attorney at Cotney Construction Law's Denver, Colorado office. For more information, contact the author at (303)653-9155, dfulcher@cotneycl.com or visit www.trentcotney.com.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.

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