Builder sends contract to owner for house and two concrete retaining walls about 40′ each. Contract specifies that owner is responsible for having the house’s footer done before their arrival on-site. She does. House goes up. Starting on retaining walls, builder says owner is responsible for wall footers, just like house footers. She says, but that’s not what the contract says. Builder says, my partner misstated it in the contract.
Accepting that this is all the info available, who is responsible for the retaining wall footers?
Replies
The builder.
You can't just say "well I forgot to tell you about that", or even, "well, my partner misstated it".
If the contract had said "ALL footers", it would be a different story.
If the contract specified the house footers and did not say anything about the retaining wall footers, then the house footers are all she's responsible for.
Edited 6/30/2002 9:19:33 PM ET by Luka
Based on info provided here, the builder is.
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Builder is. He wrote the contract and is responsible for what is in the contract. Darkworksite4: When the job is to small for everyone else, Its just about right for me"
Definetly the contractor. The homeowner may not even be aware footers are necessary for a retaining wall. The point of the contract is that all parties involved understand not only whose responsible for what, but what is required in general. It sounds like a costly mistake, but I guarentee it wont happen again.
J. D. Reynolds
Home Improvements
"DO IT RIGHT, DO IT ONCE"
Given this information, I agree that the builder is responsible for the footers. (Does it seem strange to anybody that the homeowner is responsible for the footers but not the walls?)
However there is another possible angle on this. What is the relationship between the contractor and the homeowner? How have other changes or omissions been handled? Would a concession or compromise by the homeowner pay off in the long run?
Homeowners have helped me out of a bind in the past , I have given them extra and we both walked away happy.
Sounds like it's time to write up a Change Order.
The Change Order will give her responsibility for the wall footers, which, of course, will result in the cost of the footers plus an additional 50% being deducted from the overall cost of the project.<g>
"My partner mis-stated it in the contract." That's priceless. The builder should eat the cost of the footers...with a rusty spoon for whining about it.
OK, sounds like it's unanimous. Thanks. I know both the owner and the builder, but it isn't one of my projects--I've just been asked for advice. On domes, the inflating of the domes, the foaming, and the rebar/shotcreting are often contracted separately from other parts of the completed house, just as with frame houses you have the foundation guy and the framers, etc. HOWEVER, most dome builders I know INSIST on doing the footer themselves, because it has to be done to specific tolerances or the airform (balloon) won't fit and then they have a helluva mess. At least with frame construction, there's some wiggle room in fitting the sills if the footer's off a bit. Here, if you're two inches too big on a 150' circumference, the airform likely won't stretch to fit, and if you're two inches too small, you'll have a pucker in the inflated structure. I've heard of some interesting situations on this particular job--assuming they're to be believed. Since it's not my job and I'm not on the site I won't speculate further. Thanks for the feedback.
Edit: To answer Schelling's questions, concessions would likely have no payoff. The partners are at odds and going separate ways, it seems. I knew a worker on the job, too, and he told me crazy stories that caused him to not hang around real long. I tell ya, I could use this job to make a strong case that every job needs a professional GC who can keep subs in line and completing work to standards. Also have learned about architects that charge a small fortune for design concepts and then are no assistance thereafter (ever hear of not having a completed set of construction drawings 6 months after building has started?!?!?!) I'm still shaking my head over the money that was charged and what was delivered.
Edited 6/30/2002 11:45:00 PM ET by Cloud Hidden
We have a general company rule for when a job goes sour. No arguing, no changes, get it done, get out, eat the loss. Fortunately this happens only every few years.
cloud..I was cruisin along thinking what a dufus the builder was.. then I read your last post..
from that I glean that the Owner is the GC.. so that makes it a horse of a different color, of course...
as you surmise, every job needs a GC.. looks like no one wants to own up to this one Mike Smith Rhode Island : Design / Build / Repair / Restore
What color is the horse?
There are lots of ways to think of this. A GC would likely have noticed the discrepancy and mentioned it beforehand. A GC would have noticed it and not mentioned it, but been ready to point to the contract when it came up. The owner is obviously less experienced in these matters and so should be lenient in their interpretation, be/c this is the stuff GC's and contractors work out all the time. The owner is obviously less experienced and so the contractor should have been extra careful with the contract.
Raises the question... How much is the GC responsible for saving subs from their own stupidity (if they have any)? GC sees obvious ommision from a sub's contract. Say nothing and hold them to it, or speak up and raise the price to the client (or increase profit)? Of course, the ethical answer is to point out the ommision and get a clean contract and clear conscience and a sub who looks upon you favorably. But I wonder how often the other happens.
cloud... so.. is the owner the GC in this case.. or not ?
We are usually the GC.. we are responsible for everything.. when the Owner wants to be the GC.. then they become the responsible party...and if something falls into the cracks, we sort it out..easy enough.. look at the builder's bid sheet.. was it included, or not ? if he says not and his word is good.. then let the GC eat it
in your scenario, it sounds like the builder is a sub.. and the Owner is the GC, taking care of all the things the builder is not going to do..... so ambiguity raises it's ugly head and the situation is not so cut and dried as I first believed...
here they used the builder's contract, so he bears primary responsibility .. but it would still keep two lawyers gainfully employed in sorting it out..woe unto Owners acting as GC's.. they should either leave it to those who make their living doing it, or own up to their own responsibilities..
but hey, whadda i no ?Mike Smith Rhode Island : Design / Build / Repair / Restore
Here's the gory story as I know it, occasionally filling in blanks amongst the versions I've learned from two sources, and hoping I'm not exceeding the limits of my editorial license. The owner is coordinating two contractors only: the contractor who builds the dome shell, and the contractor who does everything else. (I've only heard about this well after the fact, and just be/c she knew of my house from some other avenue, and so she asked for free advice. Emphasis on FREE <G>) She's in a part of the country where no permit or engineering or anything else is required.
In a dome, you have the footer (called the ring beam) and the above ground part (the inflated airform and the layering of materials inside that). My understanding is that she's signed fixed-price contracts with these two contractors and no one else, and they hire/handle any subs as required. So it's _almost_ like two separate GC's on mutually exclusive parts of the project. As I understand it, she's not hiring/coordinating the elec/plumbing/hvac, etc herself--the second contractor is doing all that.
My understanding is that the dome builder presented his typical contract which required that the owner (or whomever) have the "ring beam" in place before they arrived on site. Since he used the term ring beam, he couldn't have meant that to apply to a retaining wall footer (which you'd never call a ring beam) and even though he accounted for the wall, neglected to mention the wall's footer. She or the other contractor had the ring beam in place, which she thought met her contractual obligation. The contractor isn't completing the retaining walls till she pays for footers and she's not paying them the contracted amt till they finish the walls on the contracted terms. A Mexican standoff, it seems, if that's not too un-PC a description.
Complicating the issue are rumors that the contractor is in the middle of some partnership "issues", with the partners now at odds and in different parts of the country. Fun, huh?
The builder I work with mostly now won't get himself into a situation like this. He's a licensed GC and will only handle start-to-finish jobs--turnkey. He hates what he calls "blow-and-go" jobs where you have the situation here, which is essentially, two contractors responsible for different phases of the job, and you need to coordinate a good handoff from one to the other, much like a relay race.
So, the owner's situation is not like mine was where I absolutely chose to GC and hire/oversee/coordinate individual subs. She's more like an owner who has 2 GC's working sequentially on totally separate phases of the project. Maybe that's just a technicality I'm inventing for convenience, but I do see a distinction.
My reason to mention the situation in the first place here is several-fold:
1. Be/c I truely wonder how y'all look on omissions in a contract
2. To learn enough to help my clients (remember, she's not my client) avoid situations like this.
3. Maybe it'll help someone here pay extra attention when they pull up their standard contract and start modifying it--have someone review it for obvious, and costly, omissions, if possible.
thanks for clarifying.. I last learned this lesson about '86, when I hired a sub to prep a floor for tile... the finish was rough, and the plasterers were pigs,,
he prepped it, but it cost about twice what i thot it should.. when i started whining, he told me to act like a pro and suck it in..
good advice..
if you want to be a contractor, and hold your head high.. be a responsible person... you write the contract.. live with it.. if the Owner chooses to help you out of jamb
( since the Owner is the ultimate benficiary )..
so much the better.. but the Contractor is the responsible party.. at least as far as I'm concerned... not the fall-guy.. just the responsible party... Owners sould remember that when they decide to take on that responsibility to "save money"Mike Smith Rhode Island : Design / Build / Repair / Restore
Some of this problem is unique to dome building. There aren't yet enough qualified GC's who are comfortable with or equipped for the air-formed process: inflators, airlocks, 185 cfm compressors, shotcrete equip, foam rigs, polar scaffold, and on and on. Perhaps $100K+ in equip unique to the process if you do a quality job. Few are comfortable estimating the cost of it or trusting a sub they don't know with a process that's new to them, either. Likewise, most of the people who know how to build domes without dropping a yard of concrete from overhead ONTO someone's head have not gone the extra mile to get their GC license. (I can't bitch about them, be/c it's not like I've done it, either.)
So what's an owner to do? Many, many see no choice but to sign on for their own project, run it like this woman has, and muddle through. They're understand the advantages of the monolithic dome and they appreciate the aesthetics, and they do what they have to do to live in one. Talk about a committed clientele!!! For the most part I applaud their perseverence more than I fault their naivete. Shoot, I was there; how can I not?!
I'll tell you what. If any of you fine homebuilders want to GC an airformed, thin shell, concrete dome project, odds are good that I could find you an opportunity within a year. Do one successfully and you can write your own ticket. People all over are wanting to have them built, and most are suffering through this dilemma I described. I'm lucky to have the ear of two of the best builders of them. Some others don't. That segment of the building industry is being held back more by a lack of qualified builders than by anything else. fwiw and imho. :) There, I feel better.
I don't really see how we could make a judgement on this without having read the actual contract. Without the exact wording there's no way to tell.
I intend to live forever.
So far, so good.