Architect contract questions

[Tonesky 935]

We are trying to move forward post Harvey and have met with a handful of architects regarding new construction, each of whom has sent a proposal with the same two irritating terms.  I am particularly interested in hearing from architects on whether I'm looking at take it or leave it, or there might be room for negotiation on these issues.

(1) All proposals reserve plan ownership/copyright to the architect, subjecting me to liability for any use of the plan other than building my house at the specified location, and granting the architect unlimited rights and use.  I get that this is intended to protect the architect, but I am paying dearly for the plan, which is supposed to reflect my vision.  Why should the architect then have the ability to sell or license the design to others?  Is it unreasonable to request a prohibition on the architect using my plan for anything other than advertising or marketing without my consent?

(2) All proposals limit the architect's liability to the amount I pay the architect.  Most state the architect will carry at least $X in E&O coverage, but that doesn't apply to me if I've agreed to limit damages to the amount I paid to the architect.  Some even attempt to shift responsibility to me for third-party claims.  Why the limitation if the architect has insurance?  Do architect's E&O policies typically have an exclusion or coverage limitation for claims by the client/homeowner?  If not, is it unreasonable to expect to have full benefit of the E&O policy if something goes wrong?

[Godzillatron 292]

I'm an engineer not an architect, but these are pretty standard contract terms, both meant to protect the architect. The first is to prevent you from reusing or reselling the plans. It also allows the architect to reuse standard details, general notes etc. that they have developed for other projects on your job. The second is common sense - no one is going to take your job for $xx and open themselves up to contract liability beyond that for your project. Now if there's an issue with the plans/ professional work during or after construction that becomes a different issue and then the E&O may come into play.. disclaimer - I do zero residential work so YMMV.

[Onboard 2.0 9083]

3 hours ago, Tonesky said:

We are trying to move forward post Harvey and have met with a handful of architects regarding new construction, each of whom has sent a proposal with the same two irritating terms.  I am particularly interested in hearing from architects on whether I'm looking at take it or leave it, or there might be room for negotiation on these issues.

(1) All proposals reserve plan ownership/copyright to the architect, subjecting me to liability for any use of the plan other than building my house at the specified location, and granting the architect unlimited rights and use.  I get that this is intended to protect the architect, but I am paying dearly for the plan, which is supposed to reflect my vision.  Why should the architect then have the ability to sell or license the design to others?  Is it unreasonable to request a prohibition on the architect using my plan for anything other than advertising or marketing without my consent?

(2) All proposals limit the architect's liability to the amount I pay the architect.  Most state the architect will carry at least $X in E&O coverage, but that doesn't apply to me if I've agreed to limit damages to the amount I paid to the architect.  Some even attempt to shift responsibility to me for third-party claims.  Why the limitation if the architect has insurance?  Do architect's E&O policies typically have an exclusion or coverage limitation for claims by the client/homeowner?  If not, is it unreasonable to expect to have full benefit of the E&O policy if something goes wrong?

The ownership of the design may be the architects, but an architect should not be re selling a custom home design (elevations in particular) to other clients.  I consider that unethical behavior.  

The limited liability is something I've seen in engineers and other architects contracts. 

[Gil Bang 25958]

[deadshank 24653]

I screen shot your questions and concerns to an architect I know  that does a lot of bidness and very nice homes  here in Houston. 

He says it is absolutely reasonable for you to expect "your"'plans to not be reused at the producing architect's whim and he said the architect's liability should match his E&O coverage limits.

He also said he doesn't want to design your house. 

[TwiceHorn 31471]

7 hours ago, Tonesky said:

We are trying to move forward post Harvey and have met with a handful of architects regarding new construction, each of whom has sent a proposal with the same two irritating terms.  I am particularly interested in hearing from architects on whether I'm looking at take it or leave it, or there might be room for negotiation on these issues.

(1) All proposals reserve plan ownership/copyright to the architect, subjecting me to liability for any use of the plan other than building my house at the specified location, and granting the architect unlimited rights and use.  I get that this is intended to protect the architect, but I am paying dearly for the plan, which is supposed to reflect my vision.  Why should the architect then have the ability to sell or license the design to others?  Is it unreasonable to request a prohibition on the architect using my plan for anything other than advertising or marketing without my consent?

(2) All proposals limit the architect's liability to the amount I pay the architect.  Most state the architect will carry at least $X in E&O coverage, but that doesn't apply to me if I've agreed to limit damages to the amount I paid to the architect.  Some even attempt to shift responsibility to me for third-party claims.  Why the limitation if the architect has insurance?  Do architect's E&O policies typically have an exclusion or coverage limitation for claims by the client/homeowner?  If not, is it unreasonable to expect to have full benefit of the E&O policy if something goes wrong?

On item 1) the architectural drawings are slimly copyrightable, your ideas and "vision" are not and neither are the architect's, except to the extent they are embodied in the actual drawings.  So, you couldn't sue him anyway for using your "vision," disclaimer notwithstanding.  And third parties are free to copy your house to their heart's content.  But it is reasonable to specify that the drawings will not be used on another project.

 

Texas does tend to enforce limitation of liability clauses, if conspicuous and not unconscionable in operation.  A grotesque failure of professional competence might avoid it.

Edited May 21, 2018 by TwiceHorn

[NeverMarryAStripper 21907]

Last time I built a custom house I described to the architect what I thought I wanted. He said he had a set of plans from a previous project that seemed to have a lot of what I wanted and we could use it as a starting point. We made substantial changes, but I think it was easier than starting from scratch. I didn’t get sued, but I can’t say about the architect.