Prior Work Clauses in Construction Contracts and Architects Agreements
After years of working on architects agreements, I've noticed that it seems like more often then not the architect starts work on a design before they and the owner get around to actually signing an architects agreement. The same goes for contractors and construction contracts.
This brings up a problem that actually has a couple of solutions. One is to have a preliminary contract - perhaps for a limited scope of work and a limited amount of time that will then be superseded by a comprehensive architects agreement or construction contract. Many call these early start agreements.
But sometimes its too late for an early start agreement or those involved in the project don't want to spend the time and the money to negotiate and prepare one. So the alternate is to include a prior work clause in the architects agreement or construction contract.
Prior Work Clauses In Architects Agreements
The prior work clause applies the agreement retroactively to cover architectural services or construction work provided before the owner and architect enter into the architects agreement. Or before the owner and contractor enter into the construction contract. Parties can also use a prior work clause to serve a kind of audit function helping ensure that there are no pre-contract fees, reimbursable costs, costs of the work, or claims that will crop up later.
Here is my short list of things a prior work clause for an architects agreement should have:
- Retroactive application. The agreement applies to all pre-agreement effective date services provided by, or on behalf of, the architect. Whatever standards the agreement imposes on the scope and quality of the architects services will apply to services provided before the owner and architect entered into the agreement.
Construction Law Today is a legal blog about construction contracts, disputes, finance, and the people whose job it is to deal with them.
