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From TexasISD.com Preventive Law
Note: This is the third of a five part weekly series covering the subject of roof leaks and what you can do when you get one The first three articles are focused on preventing construction defects. The last two articles will focus on remediating the effects of a leaky roof including whether or not you may be able to get the architect or contractor to pay for the repairs. (Here’s a hint. The statute of limitations for most school district construction defect claims is 10 years.) Imagine that you are searching for a new high school principal. You review many impressive applications and resumes. You call previous employers to learn about their past performance. Your search committee interviews. You interview. You pick the best one. Then you never need to worry about performance again. Right? If you hire them and they become habitually late, the problem will resolve itself. If they yell at students in front of other students. Don’t worry the problem will solve itself. If they schedule themselves for vacation the week of TAKS testing. No problem. The problem will solve itself. Right? No way. You know what to do when your principal goes haywire. It’s the same thing you do when you are concerned that your construction project (and hence your architect and your contractor) starts to go haywire. You document. If it isn’t written it never happened. You never told them. You never said it. This is true in the employment context, but it is doubly true in the construction context. Many administrators aren’t aware of the fact that many construction contracts (but not all) contain provisions that require you to document your concerns arising out of the work. For those contracts, the consequence can be waiver.[1] That is – you waive your right to have defects remedied. That is not the only consequence, however. The worst consequence is that your work doesn’t get done right. Then you get a bad project, an angry public, and a board seeking answers from you. The point of documenting construction defects is not to play a game of gotcha or to build a great lawsuit. The point is to get the project built right so that you can avoid the lawsuit. You just cannot assume that the architect and the contractor understand your expectations. It is the same principal that you use to document your employees. The basics are these for the leaky roof scenario: 1. Date it. 2. Convey your expectations. – “I expect you to design/install a roof that does not leak.” 3. Convey how they failed to meet your expectations. – “When I went into the building on Friday, May 18 2007 there was water in the middle of the floor. On Thursday May 17 it rained approximately ½ inch.” 4. Convey (basically) your expectation for remediation. – “I expect that this problem to be remediated before it causes more damage to my building.” 5. Obtain a signature of receipt from the Architect/Contractor. – Some contracts require the document either to be delivered in person (in which case you need a receipt) or via certified mail return receipt requested. I do not recommend faxing or emailing. Every contract is different but most construction contracts will have some requirement that you provided this, or a similar type of notice. Can it be uncomfortable? Yes, most certainly it can. But you have to remember that your construction project is a business deal with huge implications in the event of failure. It may be a cliché but failure is not an option. The first letter doesn’t always get the job done. If it doesn’t, you will need to do another. If that one doesn’t work, then do another. The key is to be diligent. This is not harassment, and any architect or contractor that refuses to remedy legitimate concerns during the construction project is not doing what they promised to do for you. You're asking yourself – “How do I know what the standards are?” “I’m not an expert.” Well, sometimes you will need to bring in outside expertise to identify true causes to problems you may have. This will be the subject of next weeks’ article where we will discuss the basics of getting the second opinion. How do you find one and who pays for it? What's New Avoiding the Leaky Roof and What To Do When You Get One June 13, 2007 & July 19, 2007 The problem with roofing systems and construction in general is that we don't know what we don't know. This training will give you the foundation you need to ask the right questions of your design professionals. We will provide you with information concerning your course of action in case of a roof failure. You will also learn how to properly document construction defects or suspected defects. Our presenters for this sessions are David Hansen, pioneer in the area of preventive construction law and Steve Patterson, PE, CPRC, RRC of Roof Technical Services, licensed professional engineer and certified professional roofing consultant with 30 years experience. Visit www.edlaw.com for more information and to register online. Summer School Webinars June & August 2007 Visit www.edlaw.com for more information and to register online. Schwartz & Eichelbaum, P.C. and TASPA jointly present A Tropical Summer Personnel Law Conference July 11, 2007 Austin Doubletree Hotel, Austin, TX Visit www.taspa.org to register. Seventh Annual Schwartz & Eichelbaum, P.C. and the Equity Center Seminar on School Finance and Legal Issues July 20-21, 2007 Austin Marriott North Round Rock, TX Visit www.edlaw.com to register. [1] Certain standard documentation provisions are, by law, unenforceable because they provide too short a time for making the claim. Additionally, contractors and architects often intentionally or unintentionally waive these provisions. Finally, sometimes these provisions become moot due to architect apathy. Don’t use these escapes as a crutch, and don’t assume that you will be able to rely on any of these defenses. You need to contact your attorney so that he or she can evaluate your unique circumstances.
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