As long as MArk is looking this thing over, the following are my thoughts and opinions on specific clauses within the body of the doc. They are based on more than 20 years of contract negotiations.
2A. … Accordingly, the Consultant is not subject to the direct control of the Inspector. In the performance of the Services, the Consultant retains the right to control the methods and means of performance.
I personally find this clause to be troublesome, as for the purposes of the engagement, the consultant MUST be subject to the direct control of the Inspector. In effect, the Consultant is a sub-contractor. Additionally, the consultant only retains the right to control methods and means of performance if mutually agreed-to by the Inspector. Otherwise, the Consultant can use any means he/she wants, which may be contrary to the way in which the Inspector wants and expects the engagement to be executed and completed.
2B. …The Inspector acknowledges and authorizes the Consultant to engage the assistance of persons either under the Consultant’s employ or acting as independent contractors to complete certain components of the Services contemplated by this Contract.
The Inspector should always retain the right to approve any person who the sub-contractor/consultant uses or hires. Such approval should not be unreasonably withheld, but every single sub-contractor agreement I ever signed, approved, or administrated gave me the right to approve anyone involved in the project. This should extend to the sub-contractor clause which immediately follows.
4A. …The Inspector hereby agrees that it will make available to the Consultant in the performance of Services herein, whether public or private, all reports, references, documentation, or other information held by the Inspector on behalf of the Client that is necessary for the Consultant to complete the Services contemplated herein.
This clause should have the following verbiage added at the end: “where said documentation or information’s release is mutually agreed-to by the Parties, and where requested documentation or information is within the Inspector’s direct possession and control, and where release of said documentation is approved by the owner of said information or documentation.”
- WORK PRODUCT. All documents, reports, records, notes, data, samples, information, processes, and materials of any kind resulting from the performance of Services under this Contract shall jointly become the property of both the Consultant and the Inspector.
I also have a problem with this basic premise. The key to most consultant agreements goes directly to the work product. For instance, if one was to hire a software developer to develop a product, the product would become the property of the person who purchased the service. Therefore, I believe that this clause should be modified to reflect that the work product of the Consultant’s engagement becomes the property of the Inspector.
- INSURANCE. The Consultant shall carry those insurance policies for errors and omissions as customarily held in the Consultant’s profession or field of expertise.
If one were to bring an electrical contractor on board, for the electrical portion of the inspection, then it is doubtful that the electrician will actually carry E&O. General liability will be the norm. As such, I believe that #10. INDEMNIFICATION does a superior job of protecting the Inspector. I submit that many of the SME’s retained by an Inspector will probably NOT carry E&O, making this clause pretty moot.