Setting the Right Expectations for your Owner Client– Craft your Scope of Work well (law note)

belt & suspendersRegular readers of this blog know that you absolutely should have a written contract, and not rely on “gentlemen’s agreements.”  But what is the most important part of your agreement to provide professional services?  The dispute resolution provision? Payment terms? Change Order requirements?  All of those are important.  I’d argue, however, that the Scope of Work provision is, if not the most important term, one of the key terms.  Face it– once you  have a good set of standard contract terms, they rarely need to be drastically rewritten for each individual project.  But each and every time you start a new project, whether for a long-time client or a new owner, you are defining the Scope of Work.

This is where paying attention up front can save you headaches down the road.  I often refer to the belt & suspenders approach— you want to both be very clear in describing the scope of work, and equally clear in describing exclusions to your services.  That way, everyone knows what is expected up front, and you can hopefully avoid litigation pitfalls down the road.

Bill Beardslee of Davis Martin Powell has coined a nice mnemonic for Scope that is very apt:

S C O P E

Sufficiently

Control

Other

Peoples

Expectations

 

Your turn. Do you carefully craft your Scope of Work for each new Project?  You should.  If you need help in crafting your Scopes of Work, drop me a line. 

 

 

Even a text can make a contract! (law note)

text message bubblesI’ve written many times about how you should–indeed, must–document your construction project in case there are problems or disputes later on.  Of course, you need to update the plans and specs.  But equally important, you need to document agreements to do things outside of the contract documents and also all verbal directives from the owner.

Tennessee lawyer Matt Devries recently wrote a nice blog post entitled:  LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract, discussing  how even text messages can be legally binding.  Something to remember, and learn from.  I always tell clients I’d like to see any deviations signed by all parties, but failing that, a fax or email will do.  Just don’t rely on a conversation alone.  Texts are *not* the preferred method of documenting something for the court, but they are better than nothing.

Read Matt’s post and drop him a line.  And comment below if you’ve ever considered using text messages to establish a written record of agreements.

Photo courtesy Pixabay.

Betterment on Construction Projects, part 2 (more cowbell) (law note)

more cowbell sign

Another question about betterment, and about A/E insurance policies:

I am confused on why the A/E even carries error and omission insurance.  I must re-read one of the policies.  And if betterment protects the designer, why not the construction contractor who omits a work activity from his bid?

Betterment is a legal concept that covers anyone involved.   Usually, though, the situation arises when the contractor submits a change order request for a missing item, and then the owner wants to get reimbursed by the designer for the cost.  So, the contractor is getting his payment in the form of a change which, sometimes, is something he may have previously considered in his bid anyhow.  So in that sense, the contractor doesn’t really need the protection of the betterment, as he is getting paid for the change.

But, regardless of betterment, there are many other types of claims that can be made against the A/E such as errors (as opposed to omissions) for which insurance is a good idea.

Your turn:  Have you ever omitted something on your plans, that the owner then wanted you to compensate him for, despite the fact that he had no actual damages? Share below.

 

PS:  Wondering about the picture in this post?  Saturday Night Live fans will remember the classic More Cowbell skit with Christopher Walken and Will Ferrell.  Since this is my 2nd post on betterment, it seemed appropriate.  Photo credit:  Danielle Scott.

Surety Bond Now a Valid Performance Guarantee for NC Developers (guest post)

subdivision

Welcome summer days!  Today we have a guest post by Todd Bryant, president and founder of Bryant Surety Bonds. He is a surety bonds expert with years of experience in helping contractors get bonded and start their business.  While design professionals generally don’t have to deal with performance bonds directly, they are often at the front lines of advising owners as to various Requests for Proposals submitted by hopeful contractors.  In that spirit, be sure to read how the new law changes security requirements.

 Take it away, Todd!

Last year wrapped up with some good news for North Carolina subdivision developers: House Bill 721 confirmed that construction bonds are, in fact, a viable form of performance guarantee. Previous legislation was ambiguous on this point, but the new bill– which took effect last October– sought to clear up the confusion.  Although the new rules have been in effect for eight months, there’s been scant coverage of the changes, and what they mean for developers.

City Ordinances for Subdivisions

HB 721 is a revision to a section of North Carolina General Statutes, which authorizes cities to regulate land development with their own subdivision control ordinances. Ordinances are meant to ensure that land is developed in an organized fashion, to avoid overcrowding and congestion.

Cities have the discretion to set their own requirements for developers. Usually, cities ask developers to include certain features in new subdivisions, to fit in the city’s infrastructure. These might include recreational space for residents of the development, or building easements for existing roads and utilities. Some cities will allow developers to furnish funds for these public improvements, instead of building them themselves. Often, ordinances ask for detailed, up-to-date plans throughout project construction, so any changes can be approved by the city in advance.

To prove that they will follow local ordinances, subdivision developers must usually furnish the city with some kind of performance guarantee. According to the new bill, a surety bond officially meets the criteria for this guarantee.

The Facts on Surety Bonds

If you’re a design professional or developer in North Carolina, you’re probably familiar with these bonds already. Construction bonds, also known as contract bonds, are usually required of contractors who take on public construction projects. More and more, large private projects are requiring these bonds as well. There are a few different types of contract bonds, including bid bonds, payment bonds, and performance bonds, but they all serve a similar function. Contract bonds work like a line of credit for the developer, to ensure the project is completed on time, and according to the stipulations of the contract.

North Carolina HB 721 relates primarily to performance bonds, which are the type of contract bonds that cities will most often require from subdivision developers. With this new law, construction bonds are officially recognized as a valid form of performance guarantee that North Carolina subdivision developers can submit to demonstrate that they will follow all city ordinances.

HB 721 also includes some guidelines about how big this surety bond must be. Although cities will have the authority to set the bond amount on a case-by-case basis, it can’t exceed 125% of the estimated project cost.

Of course, surety bonds aren’t the only kind of performance guarantee that’s acceptable. Developers will still have the option to submit a letter of credit instead, or some equivalent security. However, the amount of credit that’s needed to satisfy this requirement is usually out of reach of some smaller developers.

Posting a bond requires much less capital than submitting a letter of credit, since the bond cost is only a small percentage of the total bond amount. The clarifications in HB 721 could be a boon for North Carolina developers who want to grow their business, as it could enable them to take on bigger projects. City officials in North Carolina are pleased with the new law, as well, as they believe this will make compliance and accountability easier, for government officials and subdivision developers.

If you’re a developer with questions about local ordinances, make sure to check with zoning officials in your subdivision’s city or county.

Thanks Todd for your article!  Readers, if you have questions or comments about how HB 721 affects your projects, feel free to share in the comments.

 Image source: https://flic.kr/p/9KpZH

Not so Universal Design Fails (guest post)

ADA ramp problems

Today we have a guest post from Carla Williams, who works in customer service for the Williams Brothers Corporation of America.   Carla humorously brings light to a serious problem– the intent behind ADA and Universal Design is very often not met with poorly-thought out applications in the real world.  Enjoy, and feel free to leave a comment for Carla below. 

Universal design is the idea that architecture should be inherently accessible to everyone. The growing number of architects adopting universal design is great news for people with accessibility needs. Instead of having separate entrances and walkways to make a building accessible, universal design allows people of all abilities to move together.

Unfortunately, many buildings are stuck back in 1990 right after the Americans with Disabilities Act was made law. These buildings may be technically “accessible,” but they aren’t spaces people with accessibility needs can maneuver very easily.  Until all building designers come to understand and implement the beauty and functionality of universal design, the world is left with less than ideal accessibility. “Less than ideal” is a bit of an understatement. Many times full-on “accessibility fails” take place.

We’ve taken the liberty of rounding up some of the most hilarious accessibility fails on the internet. These places are not only clueless about universal design, but they completely miss the whole accessibility thing by a long shot. Enjoy!

1.     A very useful ramp completely blocked by a giant flower pot. A very useful ramp indeed.

ADA ramp fail

Here we see a lack of understanding on the part of whoever dragged that flower pot out onto the ramp. Someone in a wheelchair might be able to use the ramp otherwise, but with the huge barrel of flowers sitting in the middle of it? Good luck trying to navigate around that thing into the building.

(Image source)

 

 

 

2.  The only requirement to use the ramp is the ability to climb stairs.

Ramp fail 3

Here is an example of something you may have thought impossible: a non-accessible accessible entrance. There is actually a ramp there, which is the accessible entrance into the building. The only problem is the ramp begins with a set of stairs. Stairs, according to the ADA and anyone with common sense, are non-accessible. So the ramp itself is non-accessible, making it a non-accessible accessible entrance.

(Image source)

 

 

3.     Sure, you can reach 8 feet away for toilet paper, right?

Toilet roll fail

This accessible stall is nice and wide for easy maneuvering. There is a great big spot to park your chair or walker, if that’s what you use. It’s just that the great big parking space is between you and the toilet paper once you are… situated. Let’s hope the owner of this building realizes the problem and bothers to install a TP dispenser anywhere within arm’s reach of the toilet like a considerate human being.

(Image source)

 

 

4.     Is this a wheelchair ramp or a roller coaster?Ramp roller coaster

That’s a very steep staircase and definitely not accessible, so it makes sense someone would see the need for an alternative entrance into the building. Maybe whoever installed it thought painting this “ramp” blue and slapping on an accessibility sign would make it useful to someone who needed an alternative to the stairs. The only problem is no one could even safely walk down this super slide, let alone take on the slope in a wheelchair.

(Image source)

 

 

 

 

5.     “Please ask at counter.” You know, the counter you can’t get to.

Ramp available ask at counter

Not all buildings were able or even required to meet ADA standards before 1990, and so the owners of these buildings try to accommodate their guests with accessibility needs in other ways. Yet in this case, despite good intentions, someone just wasn’t thinking it through. Great, you offer a ramp. A ramp which is only available at the counter… which is beyond the stairs. The stairs that someone with accessibility needs can’t ascend without a ramp.

(Image source)

 

 

Friends Don’t Let Friends Have Accessibility Fails

Cobbling together an accessibility solution is never as good as making a building permanently and sensibly accessible to all people. Even better, planning out a building with universal design in mind allows for better integration of accessibility needs while maintaining the design concept of a given space. Mandatory universal design would at least make ramps with stairs and stairwell superslides far less common.

Thanks Carla for your light-hearted, education post.  Thoughts/comments?  Have your own photo of an ADA or Universal Design fail?  Share below.

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