Another crazy job!!

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Author Message Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 916 Registered: 05-2003 Posted on Saturday, October 27, 2012 - 10:15 pm:    I have a private hotel project, 10 stories, that is under construction, no specifications were ever issued, the current developer wants to flip the project at the end of construction to a buyer, the Buyer wants specifications as part of the Construction documents. Of course the GC does not want specs because he has already bought out much of his products. The GC wants us to base the specs on shop drawings. I have countered that specifications are prepared from construction documents, which do not include shop drawings. Am I going to win this argument? Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 516 Registered: 10-2007 Posted on Sunday, October 28, 2012 - 02:31 am:    Why does the buyer want specifications. What state of construction is it in? Do the Buyer and Seller realize that issuing specifications will inevitably create a contractor claim for additional money? By basing the specifications on existing shop drawings the Contractor is legitimizing any existing construction. The answer to the question of whether on not you will win the argument depents on what the developer sees as being to his advantage. I am not sure that I would want to touch this project with a 10 foot pole? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 917 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 04:00 am:    Mark, the Buyer's architect has insisted that Contract Documents include Drawings and Specifications. Everyone realizes a Change order is imminent. In South Florida there remains a recession, granted it is getting better, but the 10 foot pole is more like 5, and there are still bills to pay. Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 486 Registered: 08-2005 Posted on Sunday, October 28, 2012 - 10:03 am:    The Buyers architect? Talk about the Tail wagging the Dog! I think all you can and should do is be the project historian, and produce a set of "as built" specifications documenting what information has been given or made known to you. In that context, it seems completely appropriate to use the contractors submittals. It's what they built from. How else could your spec match the actual work in place? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 918 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 11:43 am:    Nathan, I agree, for my deadline and first milestone tomorrow night, The current Developer will be getting an advanced Draft Set (I have been working on the job a whole 3 days) for his meeting with the Buyer, that set will than be forwarded to the GC who will rip it apart and have a temper tantrum at the same time. After the battle and the specifications have been modified to reflect the GC's buyout and any as-built conditions, the Specifications will be issued for construction (even though construction has been underway for 3 months). Oh and for you 1995 MF haters, good news this project has been formatted according to 2004 MF, or at least my contribution is in that form. The Consultants submitted specifications in 1995 MF, go figure. Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 487 Registered: 08-2005 Posted on Sunday, October 28, 2012 - 05:16 pm:    Jerome, it really should not be a battle. While the situation is very unorthodox, you have to remember that the original owner set it up this way, presumably intentionally, and the GC has a contract and a set price that he's agreed to. If he takes exception to items in your spec due to cost impacts, it's fair and appropriate for him to do so. After all, the effect of what you are producing is essentially changing the rules on a game he already committed to. As long as his intended method is code compliant, he's in the right. Regardless of quality. The previous owner established it that way by not having specs in the first place. Your job is to placate a new entity without invalidating the GC's existing contract. From everything you've written so far, it appears to me that your perspective as perhaps a "traditionalist" is a bit out of place on this project. Document your advice and their directives that are contrary to that advice, and then do what they want. They are not paying you as a design professional on this project. It happens sometimes. The more agreeable and cooperative you are, the higher your odds are of getting paid (which I think are already slim on this job), and perhaps you might even get an opportunity to get involved earlier on their next project where your knowledge, advice and professionalism may find a more receptive audience. Liz O'Sullivan Senior Member Username: liz_osullivan Post Number: 90 Registered: 10-2011 Posted on Sunday, October 28, 2012 - 06:34 pm:    This sounds so weird. You might want to talk to your attorney and/or insurer. The thing about contract documents including specs - well, the contract for this project DIDN'T. It feels like the buyer wants you to rewrite history, which feels a little like "backdating" something, which feels almost fraudulent - rewriting the contract. Absolutely the contractor is entitled to additional money for changes from what he had assumed - but the problem with this situation is that there's nothing that acts as a baseline to compare cost increases to. There's a whole lot of room for the contractor to say "oh, well, I had a less expensive product planned here, and here, and here, and here..." and no way for the architect to check on that. I recently did record specs for a project on which the contractor refused to submit the as-built specs that Div. 01 required. I called them "Record Documents" and on the cover I indicated that they were "as-designed record documents," instead of "as-constructed record documents," because the contractor didn't submit the required as-built project manual. Maybe you could just do record specs when it's all over? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 920 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 07:20 pm:    Nathan, although I agree and appreciate your wisdom, you have probably never worked on a So Florida highrise project, unfortunately many of them are constructed without specifications and the architect of record for this job typically does not include specifications on his projects (this architect has been extremely successful). The Developer is based in NYC, and this is thre first project in So Florida, I would guess they agreed to not include specifications because the architect told them it was not required for permit. I do an occasional Project Manual for this Architect when they do Brand Hotels, like Marriott or Hilton, which require specifications or an occassional HUD project. I received 30% of the fee upfront, 30% additional after I deliver draft specs tomorrow...80% of the time I receive at least a 30% retainer before start of work or I walk away and they find someone else. For example,I have been asked to prepare specifications on a 50 story condo project here, Designed by Herzog & Meuron, the developer is a previous client - we have prepared specifications on 3 other 50+ story condos with them, the architect of record is also a client, we will probably not receive a retainer right away on it and it is so big and bizarre, I have teamed up with a "famous" specwriter to tackle the project...when the economy is robust in So FL, I have no problem getting work. Finally after 3 years the economy is coming back. I doubt there will be another project from this developer, sound like this was a fluke since most there work is in NYC. In regards to the architect, I've been preparing specs for them, a few jobs a year, for the past 10 years and that thank god is enough. Robin E. Snyder Senior Member Username: robin Post Number: 436 Registered: 08-2004 Posted on Sunday, October 28, 2012 - 07:20 pm:    Jerome: Have you been involved with this project to this point, or are you being asked to come in now to write the specifications? If you are joining the party for the first time now, then you need to make sure your contract with your client clearly outlines what you are doing - basically creating a set of record specifications based on their selected products. Your contract should also clearly state thatthe inclusion of products/systems indicated in Shop Drawings does not constitute review or approval of those items, etc etc. I would have your attorney review your contract. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 921 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 07:27 pm:    Robin I started working on the job for the first time on Thursday (10/25/12) as a favor to the Architect, Draft specs are to be issued tomorrow night (10/29/12). I have received a retainer payment but no signed contract yet (Developer has not yet seen the Agreement). None of the fees paid to me to date are refunable. The current agreement is based on specifications prepared from Contract Documents not as-builts and not Shop Drawings. So I can modify the agrrement now as I was supposed to email it to the Developer tomorrow. Robin E. Snyder Senior Member Username: robin Post Number: 437 Registered: 08-2004 Posted on Sunday, October 28, 2012 - 07:59 pm:    Jerome - i am confused...who is your client? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 922 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 08:19 pm:    who's on first? The current Developer. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 518 Registered: 10-2007 Posted on Sunday, October 28, 2012 - 08:25 pm:    In my experience when General Notes are used in place of specifications the general notes do not address a number of code issues thus leaving it to the Contractor to fill in the missing requirement. Do not believe that contractors are able to determine the missing code requirements. In addition the contractor is only responsible for complying with the construction documents and has no obligation to determine code requirements. Thus when specifications are not produced the designers are implicitly deciding not to comply with certain code requirements. In my experience the decision on what to include in or omit from the general notes is not well thought out. While all code requirements may not be addressed when specifications are produced there is an implication that an effort was made to comply with the code. I would thus argue that it would be easier to sustain a claim of negligence agains a design professional who doe not prepare specifications. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 923 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 08:37 pm:    ok its a bit confusing to Clarify construction is underway, permit issued 3 months ago. Project is a renovation and new construction to an existing hotel, when completed the building will again be a hotel under the flag of a major hotel chain. current building owner = "the Developer" current architect - "the architect of record" future owner after construction = "the buyer" buyer's architect = company who wants the specs as part of the contract documents contractor = poor schmuck who will have to read the specs word by word, but will than be able to issue a huge change order prior to end of construction Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 924 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 08:44 pm:    Mark I agree, however one of the largest developers in South Florida, a little firm called the Related Group has built dozens of condo highrises in South Florida and 90% without specifications. Is there litigation, perhaps, I wouldn't know. I have been preparing specifications for an architect whose client is Related Group who is developing apartment projects at a feverish pace - on all those projects so far specifications have been provided. Max ht has been 8 story. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 925 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 08:48 pm:    Nathan, I have not worked as a design professional in 14 years, unless you consider a specification writer a design professional. And I have never carried professional liability insurance, nor has my specs ever been the reason for litigation, even after working on hundred's of condos. just dumb luck I guess Liz O'Sullivan Senior Member Username: liz_osullivan Post Number: 91 Registered: 10-2011 Posted on Sunday, October 28, 2012 - 08:52 pm:    The architect who will be stamping the specs (or who will be listed as architect of record for the specs) should question the motives of the buyer for having specs added to the contract documents after construction has begun. (It seems to be a transfer-of-risk thing.) The architect of record should then weigh the risks of doing this against whatever risks there may be for not adding specs. (No future work with this developer? Possibly a good idea.) Jerome, you might want to weigh the same things - doing favors for architect-clients sometimes carries more risk than reward. Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 488 Registered: 08-2005 Posted on Sunday, October 28, 2012 - 10:55 pm:    Actually, yes, I have done large Multi-family projects in South Florida... and have been sued on them. It's a weird state in which to work, I will grant you that. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 926 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 11:13 pm:    Liz, I have never signed and sealed a set of specs, in fact in every contract I stipulate that. In the State of Florida you can not have more than one architect's seal on a set of contract documents. On this project the developer wants to sell the building, its called flipping and its done all the time, in this bizarre situation, The buyer wants specs, so even though it is half-ass backwards, specs will be added at some point to the Contact Documents, probably in a form agreed upon by Developer and GC. This particular architect is currently preparing documents on a 42 story condo with no specifications, typical MO for his office, I know this because I offered my services, so I doubt he cares about the risk this much smaller job may entail. Unfortunately many architects believe that specifications on Condo projects increases risk. Thankfully there are also many architects and developers who know better. Nathan Woods, CSI, CCCA, LEED AP Senior Member Username: nwoods Post Number: 489 Registered: 08-2005 Posted on Sunday, October 28, 2012 - 11:37 pm:    "Unfortunately many architects believe that specifications on Condo projects increases risk." Yes, they absolutely do. But the increased risk is not directly from the Owner and Contractors. The increased risk is from the HOA. If there is some component not installed precisely in accordance to the written specifications, EVERYONE gets sued. On a third party GC condo project, specs are typically the norm, but many of these types of projects are Owner-Builder, and while they may control the HOA until the project is sold out, once they are bought out of the HOA (all housing units sold), the ambulance chaser defect attorney's swoop in a rile up the HOA and the specs are just too easy to find non-conformance with. Been there done that, many, many, too many times. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 927 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 11:37 pm:    Nathan, when I started working on this project the GC was 100% amiable, after I released the preliminary Summary of Work section, mostly an educated guess by me, the GC became quite belligerent. In fact the architect decided to delete Summary of Work from the Project Manual without even reading the section. This job will become a battle, I've been thru this before, granted this is odder than past projects, but it is South Florida. Perhaps you all remember the 50 story condo project (my dilemma) I worked on several years ago where the Contractor hired a Construction Consulting firm and they in turn recommended that all building standards referenced in the specifications be deleted. Their rational was that much of those standards did not apply to a building under construction in South Florida, I refused, even though the Developer agreed with the GC. My client was the architect. This led to weeks of meetings with little old me against 10-12 lawyers and construction consultants all suggesting they knew that their approach was valid...guess who won? The building got built as well as a second project, a large W Hotel - the specs never changed per the Construction Consultant's recommendation. Lot's of hot air in Florida and not just from mother nature. The Construction Consultant is no longer in business. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 928 Registered: 05-2003 Posted on Sunday, October 28, 2012 - 11:46 pm:    Nathan, you are very correct. However my specifications for Condo projects are different than every other type project, Part three is minimal because we reference manufacturer's written instructions and only reference code required testing. if the GC installs it wrong it is because he did not get the proper instruction from the manufacturer. Still there is litigation, because the Condo Vultures have nothing better to do than find default in the construction of the building. And since construction work is pretty horrible in south florida, its easy enough to find fault. Could be why so many south florida condominium contractors go under. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 931 Registered: 05-2003 Posted on Monday, October 29, 2012 - 12:09 am:    Thanks for all the advice guys, I am revising my agreement, since its not been executed yet, even though the specs will be issued tomorrow night, some how. Please keep commenting, I won't respond though, I have specs due and my daughter is undergoing emergency surgery in the morning (at the hospital ICU for 8 hours today, working at home the rest of the time, minus a few hours to sleep, eat, and veg). And my best friend is in the direct path of Hurr Sandy. Tomorrow is not looking like an easy day. Good luck to all of you who will be dealing with the Hurricane, remember to freeze those water bottles!!!