| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
| |
|
|
relating to certain agreements by architects and engineers in or in |
|
|
connection with certain construction contracts. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. The heading to Chapter 130, Civil Practice and |
|
|
Remedies Code, is amended to read as follows: |
|
|
CHAPTER 130. LIABILITY PROVISIONS [INDEMNIFICATION] IN CERTAIN |
|
|
CONSTRUCTION CONTRACTS |
|
|
SECTION 2. Section 130.002, Civil Practice and Remedies |
|
|
Code, is amended by adding Subsections (c), (d), and (e) to read as |
|
|
follows: |
|
|
(c) Except as provided by Subsection (d) or (e), a covenant |
|
|
or promise in, in connection with, or collateral to a construction |
|
|
contract for engineering or architectural services related to an |
|
|
improvement to real property is void and unenforceable if the |
|
|
covenant or promise provides that a licensed engineer or registered |
|
|
architect must defend a party, including a third party, against a |
|
|
claim based wholly or partly on the negligence of, fault of, or |
|
|
breach of contract by the owner, the owner's agent, the owner's |
|
|
employee, or another entity over which the owner exercises control. |
|
|
A covenant or promise in, in connection with, or collateral to a |
|
|
contract for engineering or architectural services related to an |
|
|
improvement to real property may provide for the reimbursement of |
|
|
an owner's reasonable attorney's fees in proportion to the |
|
|
engineer's or architect's liability. |
|
|
(d) Notwithstanding Subsection (c), an owner that is a party |
|
|
to a contract for engineering or architectural services related to |
|
|
an improvement to real property may require in the contract that the |
|
|
engineer or architect name the owner as an additional insured under |
|
|
the engineer's or architect's commercial general liability |
|
|
insurance policy and provide any defense to the owner provided by |
|
|
the policy to a named insured. |
|
|
(e) Subsection (c) does not apply to a contract for |
|
|
design-build services in which an owner contracts with a single |
|
|
entity to provide both design and construction services. |
|
|
SECTION 3. Chapter 130, Civil Practice and Remedies Code, |
|
|
is amended by adding Section 130.0021 to read as follows: |
|
|
Sec. 130.0021. ARCHITECT'S OR ENGINEER'S STANDARD OF CARE. |
|
|
(a) A construction contract for architectural or engineering |
|
|
services or a contract related to the construction or repair of an |
|
|
improvement to real property that contains architectural or |
|
|
engineering services as a component part must require that the |
|
|
architectural or engineering services be performed with the |
|
|
professional skill and care ordinarily provided by competent |
|
|
architects or engineers practicing under the same or similar |
|
|
circumstances and professional license. |
|
|
(b) If a contract described by Subsection (a) contains a |
|
|
provision establishing a different standard of care than the |
|
|
standard described by Subsection (a): |
|
|
(1) the provision is void and unenforceable; and |
|
|
(2) the standard of care described by Subsection (a) |
|
|
applies to the performance of the architectural or engineering |
|
|
services. |
|
|
(c) Section 130.004 does not limit the applicability of this |
|
|
section. |
|
|
SECTION 4. Section 130.004, Civil Practice and Remedies |
|
|
Code, is amended to read as follows: |
|
|
Sec. 130.004. OWNER OF INTEREST IN REAL PROPERTY. (a) |
|
|
Except as provided by Section 130.002(b) or (c) or Section |
|
|
130.0021, this chapter does not apply to an owner of an interest in |
|
|
real property or persons employed solely by that owner. |
|
|
(b) Except as provided by Section 130.002(b) or (c) or |
|
|
Section 130.0021, this chapter does not prohibit or make void or |
|
|
unenforceable a covenant or promise to: |
|
|
(1) indemnify or hold harmless an owner of an interest |
|
|
in real property and persons employed solely by that owner; or |
|
|
(2) allocate, release, liquidate, limit, or exclude |
|
|
liability in connection with a construction contract between an |
|
|
owner or other person for whom a construction contract is being |
|
|
performed and a registered architect or licensed engineer. |
|
|
SECTION 5. (a) Section 130.002(c), Civil Practice and |
|
|
Remedies Code, as added by this Act, applies only to a covenant or |
|
|
promise in, in connection with, or collateral to a contract entered |
|
|
into on or after the effective date of this Act. |
|
|
(b) Sections 130.002(d) and 130.0021, Civil Practice and |
|
|
Remedies Code, as added by this Act, apply only to a contract |
|
|
entered into on or after the effective date of this Act. |
|
|
SECTION 6. This Act takes effect September 1, 2021. |
|
|
|
|
|
* * * * * |