Note: Due to space limitations, this article will not cover key provisions appropriate in a repair contract (lien waivers, prevailing party attorney's fees, venue for disputes, delay damages, insurance requirements, etc.).
Get the Right Experts
For every building problem, there is an associated expert appropriate to investigate the issue and specify the appropriate repairs. Some engineering firms have experts on staff who cover most issues regularly confronted. However, there are specialty experts who can be called in to supplement review by a generalist.
Know Fully the Problems Requiring Correction
Before you have most surgeries, doctors have run you through extensive tests, x-rays, sonograms, etc. to pinpoint the precise nature of your malady. The same is true for repair projects. Before a cure is implemented, it is best to know as much about the building's problems as possible. This can include destructive testing to determine the true underlying cause of the issues, or testing based upon a mock-up, such as window or sliding glass door water testing.
Have the Engineering Proposals Reviewed by a Construction Lawyer
Some engineering firms insert unreasonable self-protection clauses (such as limitations of liability) into their proposals with community associations. These can be negotiated out by a construction lawyer familiar with such clauses and their implications. In any case, in choosing between engineering firms, consider the terms of the proposals presented as one of the differentiating factors.
Have Detailed and On Target Plans and Specifications Prepared
Plans and specifications tend to be generic. Urge your engineering firm to prepare plans and specifications customized for your job. It's smart to have the plans and specifications reviewed by an independent construction consultant to point out potential inconsistencies, lack of clarity or omissions. The contractor chosen for the job should also be urged to comment on the plans and specifications.
Have a Construction Lawyer Prepare the Repair Contract
Some engineering firms insert a form contract in their bid packages. These form contracts are often not tailored for repair jobs and are more protective of engineers than community associations. In addition, they omit provisions required by Florida law and contain provisions unenforceable under Florida law. Have an owner-oriented repair contract tailored for repairs prepared by a construction lawyer familiar with Florida law.
Carefully Select the Owner's Representative
Someone on behalf of the community association needs to monitor the progress of the work and be available to make decisions and answer questions. The community association manager may be too busy on regular management duties to take on this role. Some associations assign board members, but what happens when the board member who fills the role goes back up north for the summer? It may make sense to retain the services of a project manager to act as owner's representative. This, however, should be in addition to contract administration by your engineer, not in place of it.
Carefully Vet Bidders and Qualify the Repair Team
Choose a contractor appropriate for the job. Ask for references relevant to the work proposed and interview them. Be sure that the bidders specify the superintendent and subcontractors they are committed to bring to your job. Certain contractors when they get busy hire journeymen superintendents and second-tier subcontractors. Make sure that the bidders are committed to assigning their best team to your job.
Negotiate a Balanced Draw Schedule
Negotiate a draw schedule which has the contractor at any point in the job having provided more value than they have been paid. Avoid initial deposits and require retainage. These protections provide the best assurance that the contractor will remain motivated to complete the job on time.
· Document Conditions in Detail before the Work Begins
Prepare a notebook with photographs and inspection reports to detail the conditions before work begins. This will help minimize change orders, provide necessary proof of preexisting conditions in the event damage is done to the property and minimize owner claims.
Secure a Performance and Payment Bond
This pertains to a major repair project. Bonds are not usually available for smaller projects. Some bidders may not be bondable. This is a way to ferret out contractors without sufficient financial wherewithal or whom have a negative claims' history. Besides providing important security for project completion and payment of subs and suppliers, contractors do not want their surety to be brought in on a job so having a bond in place is incentive for the contractor to do competent work and pay their subs and suppliers.
Keep Regular Job Meeting Minutes and Confirm Understandings in Writing in a Timely Fashion
Some contractors are forgetful. A commitment made on the job today to include an activity within the original scope of the contract can six months later turn up in a change order request. Job meeting minutes should be kept and timely circulated, and timely e-mail confirmations should be sent to document communications exchanged between job meetings.
Nip Issues in the Bud
The first draw request upon work being completed in the field is crucial. That is when the message is conveyed to the contractor as to whether the association is going to demand strict compliance with quality requirements and properly vet the pay requests throughout the job. Most contractors are capable of doing good work and keeping proper accounting but it helps when the association is holding the contractor accountable. Obviously, the careful scrutiny of the work and job accounting should continue to job completion.
Be Diligent at Final Payment and Job Closeout
The final payment request is the opportunity to properly tie up remaining obligations surrounding defective work, damages to property, product and equipment warranty certification and delivery, and job accounting. Warranties are no substitute for getting things corrected while the association continues to have financial leverage over the contractor. It is no time to let down your guard.
Even the best planned and documented repair effort can have issues. However, diligent planning, the selection of the right team, a strong owner-oriented contract and accountability throughout the job can lessen considerably the likelihood of unforeseen issues negatively impacting the association.