Melissa Dewey Brumback | Construction Law in North Carolina
Has an Owner ever asked you to sign his contract before you started work on a new design project? Rhetorical question– this happens all the time, right? Especially in commercial work, developers or owners typically are not happy to simply agree to your Proposal for Services, but instead want you to sign *their* contract.
Make sure you know the risks you are taking on- or just say no!
There are some risks with that you should be aware of — one of which is the seemingly arcane and legalistic language that reads something like this:
“The Developer’s contract with Owner is hereby incorporated by reference.”
What does this mean? This language means that you have legal responsibilities that you may not even be aware of. If the Developer agreed with the Owner to a certain a time frame (i.e., a “time is of the essence” clause), or any particular performance standard (LEED certification, for example), then you also have agreed to these terms. Did you know that?
So many times when I’m asked to review a contract for an architect, there is language incorporating a document that they never have even seen. NEVER sign any such contract until you have gotten the document “incorporated by reference”, viewed it with your risk managers, insurance broker, and lawyer, and made the decision that you can live with those terms.
Clauses that are incorporated *are* legally enforceable. Make sure you know what you are getting into.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.