Ep 27: Is That Even Legal?


This is life of an architect a podcast dedicated to all things architecture with a little bit of life, thrown in for balance. Have you ever wondered about the legality side of architecture? Exactly. Most people don't eat while it's not an exciting part of the profession. It is one that every licensed architect must consider on every project. So today's topic is is that even legal. Hi everyone. I'm Bob Borsen. And I'm Andrew Hawkins in today. We're gonna learn about the legalities of architecture on hopefully, here's some tales of the is that even legal variety and gain some insight into this often overlooked side of the profession. Joining us today, her Mike Kogler in Sao ver-, Astro mic ogres an attorney on the contract documents team at the American Institute of architects in Washington DC at the AI Mike works with a group of attorneys and architects to create N revise, the AI contract documents Mike practice civil litigation prior to joining the AI, primarily representing contractors and property owners in construction related disputes. Mike also worked as an architect, and briefly as an urban planner in San Diego before transitioning to the practice of law. How you doing Mike? I'm to increase Bob. Thanks for having me, we're happy. You can be with us today. Also joining us is Salvador, Astro missive veracity was a principal in the firm, Spillman farmer architects, and he's been that since nineteen eighty three. His expert knowledge of construction, specifications, materials and methods expertise and roofing and building envelope forensics and abroad understanding of design and construction, make him a valuable acid. He served at the construction specifications institute as an instructor at the CSI kademi educational courses teaching the principles of specifications and contract administration. How you doing today, south, I'm doing fantastic. Thanks for having me, you guys have some skins on the wall. Glad that you both here to talk about the exciting chapter that we're going to discuss today, which is the legal side of the profession. I know I said this in the in the opening segment, and as I said it, I thought those guys might totally disagree with the fact that I said, this is not that interesting, and I don't mean to demean it that way, what I mean, is that I know that architects tend to not think about this part of the kind of the workflow lot, maybe from volume standpoint. We all know it's very, very serious. It's very, very important, which is why we wanted to have you guys come on today kinda talk about why it's important why they should think about it. And the sort of energy and effort, people should expand towards making sure they have their house in order from a legal standpoint in my mind. Absolutely. No question. It is the fascinating part about it. Be honest with you just for an example, anytime, there's a legal seminar architects, flocked to seminars. You can have a seminar on one of the hottest products that out there. But I will tell you that if you apply legal aspect to it, or a seminar on the top legal cases in the US architects, flocked to it, because it's the most damaging aspect in our careers are potentially. You're learning from other people's mistakes, I was always told you can make a mistake once, but it's nice to learn from somebody else's mistakes. So you don't make them. Yeah. That is good way to. That's great legal advice, or just life advice general. Yeah. We talk about that, you know, we had that phrase by dad used to have the fool me once. Shame on you. Full me twice. Shame on me, which is kind of the message that if you make a mistake. And you put yourself in a position to repeat that mistake Thurs, no recovery from that, that is one hundred percent on you. I've never heard the learn from somebody else's mistake. I need to put that in my quiver, you know, my little arrows story, Nossa. Hey, here's this lexicon how we can phrase this. So if you had to sum it up as far as what's the most important aspect of cover yourself legally in just a couple of sentences. What do you think that would be from an architect standpoint? Yeah. I think that any really establishing expectations and getting on the right page with your client is incredibly important. I feel like a lot of architects, least ones that I've worked with in the past and ones that I've represented in the past. They think they can do things on a nod handshake basis. And they think that their clients know, the services that they will perform in that they're expected to perform in a lot of times that works out, well initially, but then there's some kind of a dispute in which he realized for the very first time that, oh, you expected needed to five different designs, and I was only going into one, and we never committed to writing, and that's a really bad time to figure out that you have a misunderstanding about what you are expecting. Were so getting those down in writing, and just really having a contracting feel familiar with that it is incredibly important is to set expectations on a project is an education tool for architects to teach their clients about the services that they'll provide to me. That's one of the most important parts. There's a lot of little things that I, I think architects, need to be aware of, but getting that level of expectation and setting that says the nation, so that everybody's kind of on the same page when you start off right. Yeah. That really simply put his defining the scope of the work, right? I mean, that's what the goal is your hiring me to perform a service, I'm gonna define my understanding of what you're asking me to do in his contract as your new agree to it. And that's how we go about the process of executing. It do find that's where a lot of the Gatien comes in, and that aspect of just it's a misunderstanding of I thought you were doing that. You know, I thought you were doing something different shirt. That's definitely wear a lot of things come into play to be fair. A lot of litigation comes about, because you have a problem on a building five years later, and it's you know, I'm aware. So those kinds of things are really what stem a lot of a lot of litigation. Claims come from. Definitely misunderstandings is a big component of it. If I can add that I think while you said it very well, so understanding the scope of work or Scopus services paramount, but also understanding what you're not going to do. Sometimes you can say, I'm doing this, this, and this and the owner doesn't really understand. They think oh, that's all included. Like, what we would consider extra services are additional services. You have to spell that out as well. What that might be, for example, if you have to, to some soil testing, no one would consider that, maybe in the base bid, but until you get to the job, you realize, oh, we need some additional testing here. Well, that's on the owners Bill, so to speak. But they come to us and say, well, you should have known that why didn't you tell me that upfront? Certainly you knew that poets nut. So sometimes, I like to tell them. Here's what we are going to do. And here's what we're not going to do. Well, I want to ask you question about sir 'cause I guess, me tired head, what you just said. I go if you if I have to define everything that I am going to do, and my mind if I tell him to do it that intern tells you what I'm not going to do. If I say, I'm gonna pick up this pen and instead it back on a table because I said it that way, it also means I'm not going to run down the street and jump in a lake. I mean at what point do you have to just keep defining all the things you're not going to do? I don't understand that. Okay. Tell me understands. It's a good point. I'm sure you got stories to but just tell you classic Linda, that's today. So and the new the new, for example, international building code years ago, we would assist the owner in what we call special inspections that are required on the job. You're testing the concrete, you testing welding, and things like that. The new code says that we as architects cannot render those services directly to the owner. In fact, the contractor can't provide them any longer. The owner has to go outside the contract and, and independent testing agency. What I'm trying to say is we have to tell the owner because it's in the contract that those things will be done, but we don't say who's going to do them. So we have to spell that out because they think well how can I get my building? Those inspections. Don't occur in so we tell them up front in our services. We're not gonna provide those in fact, you have to provide them independently we can't even usher them in so to speak. But don't you also get that caveat that this is legal speak here, but not limited to thank you. See, you know, and I list the bunch of stuff, and I go at what point do you say draw shorter the line of, and I'm not going to go jump in the lake? Right. That's the thing that I find it very difficult the way I look at it a lot of times. I'm not speaking from a position of knowledge depth on this matter, you know, in fact, I asked Andrew run point on this episode because he does a lot more commercial work than I do. And he's much more familiar with this type of the contracts side of the business that I am. I do a lot of residential my contracts are like three pages long. So if I say, this is what I'm going to do. And then it seems like if I need you to do something I need to say, in this is what you're going to do rather than this is not what I'm going to do that make sense. It does make sense. It's perfectly reasonable way. Due to a contract. I guess, I'll take an example as most architecture. At least familiar with our be one-to-one, one owner architect agreement. It's the one that we all studied architecture school, and we didn't understand it. But then as we've gotten along in our careers we've used that documentary stir aware of its existence. Now documents been around in some shape, or form for one hundred years, something like that. I look at that document as more of a historical. It's more of a history piece like it's a historical collection of real life architects, scenarios that architects, that have been on our committee have put language in there, because of Sicilian, instances that they might only had once or twice in their career, but they really got burnt on it, and I'll give you an example. So if you look at article four on one to one it is a laundry list of extra work that architects are often asked to do, but are sometimes expected to do for free. It's literally like a page and a half of just a list of extra stuff the first one on that list is designed the building. Affect you to do that for free. Right. But it's all of those things when I read them, because I know the history of the documents program, I know that that's not just some attorney writing up a bunch of caveats over the years. That's actual architects that we've worked with folks like this learning from the past mistakes. I see every one of those little lines reviewing submissions out of sequence. I think there's some architect out there on our committee, thirty forty years ago that got really burnt one time by reviewing a bunch of symbols out of sequence, or answering RFI's that already had an answer to them. And so that's why they've written in there that I want to get extra money because this happens on enough projects that I need to make sure that you have a way to get more money for it. They're the kind of things that you might not encounter on every project. But when you do need it, it's kinda helpful. I never enter anything twice. I never have to do that, right. That's not a thing that happens can I add to what makes that one thing for sure. I think when you use the documents when I'm not here to promoting them so to speak, but you don't have to. Corporate what I'm not going to do into the a documents because they're on their game. And they picked up a lot of those things in advance, there's a few things that I think are I is slated to regional or specific to the job things like that. Is this real quick store? Just happened to me, and there was no a contract because it was such a small thing I doing a job and I realized I needed to have a rooftop beam sized one little beam, and I called the structural engineer and I said, who wasn't on the job? It was in interior project, and he said, I'll size the beam for you. Great charge me, I'm exaggerated eighteen hundred bucks. Okay, it was an Email agreement, I trusted them. Then he did. He did the job. And then the shop drawing came in from the subcontractor, and I send it off to him. And he sent me a Bill for nine hundred dollars to review the shop drawing and I said, why would you not incorporate that in today? Teen hundred tell me originally. Why, why is this an extra service? Well, it wasn't part of our agreement. I said, you should have told me you weren't going to review it, and I would have just said, what's gonna cost because I can't complete it. And there's a classic example of him that telling me it was included or not. I would just assumed it was included. Now, if I use the day contract was so contractor, it's spelled out, but it was such a small little dinky thing, that's I'm really cautious about what's incl-. -cluded in what's that happens? A lot quite honest. I'm sure it does even the small projects have big risks. I feel like sometimes they have more. Yeah. That's one of those. Are you kidding me? Kinda moments. Like, if someone says, hey, I want X. There are certain things you assume become part of that deliverable. Luckily for me I haven't been burned yet by that. But, you know, just hearing it makes me go man that could have happened to me hundred times over where I've done something, very similar, and I didn't put a proper contract in place, and they send me the Bill and I haven't been hit with a nine hundred dollar up charge for them to review the drawing later. But there's nothing this said that, that couldn't have happened. You're I right? I didn't have the right paperwork in place. Right. Let's move on and talk about a few things related to the phases of design and delivery. We talk about the basic legal issues. What are the like high points for the design phase of work seems like setting expectations really, what that's about in the beginning, but his in some other topics that seem I can problem, Sal, and I probably have different ideas on this. But from working in law office, before worked at the AA, he played a lot of issues came in across my desk. Ask during the design phase we're about getting paid. It's about architects, not getting paid right? And, you know, not getting paid for their basic service, not getting paid for their extra work. Some key things to think about on that is don't let your clients, get behind clients, who get behind on payments tend to stay behind and get further behind. I think it's probably true with any kind of dead. Don't let them get too far behind before you start having them for money and also probably the biggest thing in FARs. An architect getting paid is to not give up your rights to your try and your intellectual property. You want to be giving your client a license to use them if they've paid your Bill, and if they haven't paid your Bill, you can revoke that license, and you're really good position to push back on them. And say we're not going to continue on with design, you can't use my design until you've paid me. In full if you give up the rights to your intellectual property, as you're going along, they can replace you real quick. So there's somebody keep in mind. Scary to the nuts. It seems like that's I'm trying to think of the best way to put it. It's so patently obvious. What you say it out loud. That this is licensed, you're paying me to provide the service. And if you don't pay me, you don't get the fruits from my service in the contract language kind of spells out the how this works. It does. And it's it goes in a lot of detail. Of course, most of arguments have that kind of language, but there are a lot of owners tale. A lot of owners you've probably worked with him that stink that when you finish your drawings that they own your drawings that they own them, and they can do with them, what they want, and they can fire you and replace you for the C work. Does that ever run their own happened? Aveiro happened to me it hasn't. But actually we talking to someone yesterday and that's happened him a few times that he would do the project. And as soon as he did the deliverable that would yield a permit, they fired him so that they didn't have to pay him to do the construction administration. Great way to save money on a project. If you're an owner and saying that jokingly but a lot of owners think that way, especially if you backload your feats, as an architect, you've got a lot of money put into the sea as services and you get down that road where you've got you've got your CD's done. And if you still owe that architect to say million dollars for CA services will that owner can go and fire, you and hire another architect to do the for two hundred thousand I found a lot of clients in that exact position. I mean they're going to take that opportunity. Unless you've protected yourself by getting your fees, a little bit more evenly managed throughout the project or just frontloading them front loading them. I, I was, I was going to avoid saying from loading enter ticket enter took care that for you. I did it. Sidestep that room. And that's the problem. I see a lot architects, and I'm guilty of it too. We try to front load our projects to avoid that situation. In case we are terminated. But unless you manage your money in your, your invoicing and spending that money when it comes down to see a you really riding on a nothing. There's no money coming in the other thing wanted out. Big exclamation point. We should never give our rights to the intellectual property over to the owner, but architects, do it all the time, particularly when they have a good relationship with the client project, went well, the come back five years later, and they want to do a different tenant fit out or something or an addition, and maybe they're going to have another architect, do it, or, you know, they have an architect and family. Now they want the drawings and went to CAD drawings, and we give them up. They think it's their property. They own. Of course. They paid for that, number one number two. We feel obligated because we don't want hurt their feelings. It's a tough road to hoe and it's also one of those things you don't want to ruin a relationship with a client. So you give in which is. We shouldn't do that. The other thing in my aspect under the design element is the budget architects have to understand the owners budget upfront in respect it and not just blow it off. And I think that's one of the legal things that architects, forget, that's the most one of the most important aspects you responsible for the budget. I know we, we've talked about this. We'll talk about it is that what of architects, get sued for while the budget doesn't come to fruition until later on in the project at the end that the project where you, blew the budget. And if you don't understand it upfront. You're never gonna hit that target. All right. So let's move on to construction leelee issues during the construction phase work. What are some of those big items, I'll give probably my favorite one, which is if you're gonna do see a work construction administration do it. Right. Don't tip toe into that portion of architecture, only do half CA services. If you're going to see a work go to the job site on a regular basis. Keep your eyes open report back to the owner things that you see review payment applications to the RFI's, right. I ran into number of architects who will, you know, they'll kind of tip toe into the sea, a phase, and then all of a sudden they're going to be held to the standard of an architect who was doing a full set of services. And yet in a little bit of difficulties. Tell you boy, answers their next point. Why really big unseated excited salad twice? A joke. I'm a big advocate that contract administration is so important. And I'll tell you why what's the last thing. The client remembers agree with you a hundred percent on that turn the keys over at CA, if you do a lousy job. That's what they remember in. Typically, what I find is during design and construction, well early and construction, but design, mostly you don't really deal with the president of the company you dealing with other people, the facilities people. But the president shows up contract ministration at the end of it. They're walking through the building. They wanna see it and there's issues into comes up. He got the contractor, speaking, Elvis in his ear. And then they look at us like why did I have this higher this architect? So makes absolutely correct. You got it put time and money into doing it correctly, and it's not something we get a lot of training on in school. It's kind of learned in the field. Can I tell a nightmare CA story, I had as very young architect? Would you do? Of course. Please is working on a fairly large house, probably three years out of school. No baby to anyway. Doing CA work, and I was probably a little bit over my head. But the firm I worked for gave me a great opportunity to go out to the job site once a week, participate in meetings, meet owners RAB, meet the contractors, great experience to we were doing it big industrial flooring. And it was this in the flooring, type that we had was there's three different colors of flooring, and I don't remember the exact material, but there was three different colors that didn't go together. Who's to say that from our drawings were supposed to be in three different areas on this big industrial floor and the owner's rep at one time, had this just great idea after a meeting, and she said, well, what if we just mix them all together, the McCain's sounds terrible? But I was like, I don't think that's a good idea. I should run this by folks in my office. She was like, no, I really think we should mix them all together. They would make an interesting pattern. It wasn't bad. But we ended up doing that months went by before they were actually installed. And so I had forgotten not forgotten about it. I knew that was a decision that she had made an I at least from my kind of. Naive experience at that point. I thought the owner was directing me. This was an owner's rep somebody who is it was not the vice president of the company or anything when the rest of the group. The owners group came out that was not just the owner's rep and looked at the floor. They said these all wire, the Pat, why is this a weird pattern of three colors that don't match? And the owner's rep looked at me and said, yeah, why? Here's the bus. Oh, and really? So I had to just red faced, like, I, I didn't wanna throw her under the bus because she had made that decision and made it clear to me that, that's what she thought was the right decision. And I went back through all my notes. And Finally, I found at least some documentation, although it was only my personal notes, I could have made them up after the fact, that's to me, it was document decisions any decision. You have to document it. Because at some point people will make chain they will change their memory of the way a decision was made that happens a lot, especially on a big project. It could be a decision that was made eighteen months ago. Right. And you remember at one way, and somebody else remembers it another and have us down on paper, it's a different story. Documentation is so important throughout the construction process, but also in design because you make a lot of decisions in design, at least some of the people may come in, in their gun, and then you're left holding the bag just like Mike was and, and what do you do the other thing I wanted to add under CA his? Vic- architects, overstepping their boundaries in rob legations, so rosey path. Because remember who you're working with will work with contractors who the people in the field. Don't understand their obligations. So they start asking architects for things that it's not my responsibility. I'm not saying means a methods, but it's pretty close. They'll ask you to do things that is their responsibility. What Hyfte way they mount something? Well, it's on the drawings. You should go, look, I'm not going to tell you what it is. Just go look, I had people ask me, how many fire extinguishers are into building, so I can order them. I don't know. You, you need to count them. I don't. I don't know. I know what type of fire extinguisher, we have. But I don't know how many there are you need to count it. You need to do your job. And I'm not gonna waste my time. I've actually had people my office, do things like that for the contract. I said, that's their responsibility. We're overstepping our boundaries. And now we're, we're legally obligated or on the hook for these kind of things should we give them the wrong answer? So architects, overstep, their boundaries a lot, even Mike classic cases. Then I get arguments. When people all the time hardware schedule. I hate hardware schedules. Hate writing them a hate reading them. He looking at them. Sign me up for that. Don't world testament, I either I had an architect in my office, who would go through the hardware schedule line by line, making sure that the quantity was right and the model numbers were right. And I said, that's not our job. We already wrote at once, why are you double checking they submitted from the shop drawing stage? I said, you could check one or two and usually to give you cut sheets. Okay. This is the locks at a ordered in this is the right finish. And the whatever it's a continuous hitch. I'm okay with that. But don't you quantities because what's the worst thing that can happen? They show up in the job site. And there's they're short three who's response for that, if they were short three studs who's responsible for that? My attitude is don't do their job for them. You're just checking for design intent. That's all that's a tough one, though. Because sometimes I follow that habit of any to make sure that his right. Because if it's not. I'm going to be the person that kinda takes the brunt of it, unfortunately, so you're still look at you as from day, one were viewed as the answer provider. The problem solver. So if the contractor has a question, how many of these do I put on the job site? The inclination is asked the architect. They're the provider of everything that is and will be on this project and you say, well, it's in the joints, go count them yourself. Sometimes you're like, well, if they screw it up. I could just tell them then what you know, we'll get it. Right. And it's because we think that we're infallible. I'm with you on that one. We try to stay away from that. It's funny. You brought up door hardware. We actually just had a project come to the office and, and I don't do as big projects as Andrew does. But it was a really technologically advanced kind of co working space and the hardware schedule was dense every door had, like different mag- locked this, and bluetooth wired that in. I mean it went on and on and on. And I think the guy who checked the drawings. I mean the notes that he had. And I was like this is taking like four days for us to go through it, and I was, like, you don't need to check to make sure he's like I'm just checking for functionality like, did we solve the problem? Right. The first time and I went okay, that's, that's fine. But don't say how many of these were supposed to have. Right. That's not supposed to be our job. So I was like, if you do, it's on us, we're going to buy them. If we say too many. Man gives me the he GB's. I can't imagine a one a year jobs, and you have eight billion door. Yeah, there's, there's lots of pages, lots of pages. That's a bad road to go down hardware, and has it just take a minute. Yourself? Reminding me, why am I guess I'm a little happy that I switched out architecture law because I did a lot of hardware schedules as a very junior level architect. They're fine. Aren't they know? They're they're amazing. Yeah. And I will say this, I know a handful of people that they're in hardware, a love it. Visit amaze-. Yeah. And I and I go, it seems like I don't know if it's a gene thing or just tired for me to go while their passion is hardware that seems hard that exists. But, you know it absolutely does exist. And when you find those people that love it, you're like, all right. We're in. I want to give to friends move. Things that make you happy. I used to hear that my early career when I was a specification writer because I loved it. And people go okay, you're it because no one wanted to write specifications. I must be a geek because I did like doing it. I learned a lot. I don't do it as much anymore, but I still love doing it. It's interesting point. It's important, we need people to be passionate about it. Absolutely life of an architect. We'll be back in just a moment. We're sitting here with Mike Coker from the American Institute of architects, Salva Rostro from Spillman farmer architects in. We're gonna talk to you guys about the new a into your contract documents a contract. Documents are nearly two hundred forms of contracts that defined the relationships in terms involve, the design and construction projects prepared by the with a consensus of owners contractors attorneys architects, engineers, and others. Documents have been finally tuned during their hundred and twenty years of existence, as a result, these comprehensive contracts and forms are now widely recognized as the industry standard. Did you know that it was one hundred twenty years that these contracts have been in place? Actually a hundred and thirty one really did have been that long. He looks good for one hundred thirty one dozen. I asked a group that I was talking to earlier today. They, they knew how long they had been around and I did a little research to what else happened in eighteen eighty eight. Which is when we produced our first document is the year which the Washington Monument was opened up. Wow. I've been around a long time that is. You're about the tragic fire next. That's what spawned. I need to. May twenty second the AI revamped its interiors family of documents allowing the architect to account for the risks and responsibilities of designing buildings into your while working with contractors and f f any vendors and the revised contracts are now suitable for use on any type of project beyond commercial, including residential retail entertainment, and hospitality. Mike you were involved in that revamping or you're not. Absolutely. So tell us about some of the things that you went through during this revamp their updated. So what's, what does the high points, which changed? Sure. So the first thing we did was to interview a bunch of architects on their practice and we learned from them, you know what was working. And what wasn't one thing that we really tried to address in these contracts was the role that an architect who's doing interiors lays with regard to f f procurement some architects wanted to be involved. Others didn't. So we gave them a document or B two fifty four purchasing agent scope that if they were gonna do those kinds of services. It's at least a good guideline for. Things that they should be looking out for that. They might wanna do get paid extra four and activities that they might be a little bit wary of doing B two fifty four just to clarify. That's the number designation for the contract. We're talking about good point. Yes. We number all of our documents of b series document is an owner architect agreement. And if it starts with a two in front of that means it is a scope of services, which is it is not a complete agreement in and of itself. It needs to be married up with a baseline agreement of the one hundred series agreement. So it is just an extra piece of scope that you can do for an additional fee. That's nice. And Sal, you're involved in this project as well. Though, was, I think one of the things that Mike purchase brought up a lot of people don't understand that their contract documents that can stand alone to use the loan in his others. That needs multiple documents have to be married up together, but a lot architects, don't understand that. The other thing about the interiors documents that intrigued me was, we were always perplexed, my architects, don't use them very much. If at all I think we I well found out that they needed to be improved. They didn't. Meet the current needs of the architects today. Number one. And number two, the perception is that when you do in tears documents the risks are really low, so why use a contract document, we could just use a letter agreement. I'm Michael tell you as an attorney that the risks are always there, not that many people could get hurt. But like anything else, why are there lawsuits? Well, it's has nothing to with people getting hurt has lots to do with you didn't complete your documentation, or the owner lost money. You didn't meet it on time. So all those things it doesn't really matter what the project is the owner could incur loss, and then there's legal ramifications, so you have to protect yourself think these documents have much more improved than they were. When we started that sounds Craig because I know liabilities everywhere. Right. Well, if you're incident finding out more about as interior family of documents, you can go to AA contracts dot org forward slash life of an architect that link will be at the bottom of the show notes that we have for this episode. So again, that's a. I a contracts dot org. Ford slash life of the Mark. So then what about issues after completion? I'm we kinda tapped on a little bit. So what are some ideas or what are some issues that come up with that? The one of the things is interesting to me, I'm gonna tie this real quick. Is that the responsibility or the liability is different across the nation is far as how long after the project is complete? And my liable is an architect like that. That's all over the place that. Yeah. We call that. It's a statute of. Repose. Uh-huh. Taking the outside limits of which no time limits, which claim can be brought most states. I wanna see most states because I don't know that, but, you know, route ten years is, is about average. There are some states, though, that have six year eight year maybe even twelve year but they, they do change. Yeah, they do change. So what will own interjects them. How did we lose that legal battle? You know how, how is it that contractors have figured out how to get off the hook after a year? But here it is they haven't gotten off you after a year of represented. A lot of contract. He gets sued way after that they so a year is their warranty. Typically is their warranty work. So they'll come back and fixings for warranty. But they can still be sued up to about up to ten years. Why using sample I can see you whenever I want. Right. But I can see it. But if it's if it is a one that would fall outside of the statute of repose. If you're bringing a lawsuit against me for designing something fifteen years, or so, after I had substantial completion of get met I can get motion for summary judgment in like two months easily. Now, if it was within that ten years to try. To fight out that case it might it would take much longer. I say two months say thinking that, that's a very quick shores Llamas as quick turnaround. Yeah. So that's a pretty easy defended case one that's been brought outside the ten year period. Yeah. And the contractors are still. They have is their statute of repose similar to ours. Then I guess it varies by St Mary's by state, but yes, it is. It's typically similar round ten years in so what other like what kind of issues come up host construction, is it mostly? I know they're called design failures, which I think is funny because to me, they're installation failures or something like that, not really a design flaw. That gazelles up to me pretty quickly, one of the things that happens are, I'll give you two ideas. So when I was in private practices and attorney and I represented contractors and architects, turncoat. Yeah. I, I come on now come on. I, I defended a few architects out there, but I the, the claims that always had the big dollars to him that were the ones that you really. Had to hire an attorney for and insurance involved with were water claims and soils. Those are the two huge dollar kinds of claims that owners really need to go to somebody for because they're out a whole lot of money if things start cracking and slammed on side of ill. Or if there is water damage by the time you've noticed water damage you've got mold throughout the building, and you've got extensive problems that have probably been going on for a long time, just for tips to architects, don't hire the Geotechnical engineer make the owner higher the Geotechnical engineer, because then all of the soils issues will tend to fall directly to them, and you can at least have that notice. So he's of an Oletta architects, do Geotech. But that's you know, that's something that traditionally the owners are responsible for site engineering. Sure, things like doing surveying Geotech, but also learn how to design a building watertight is a lot of claims are water based, Sal, you probably have all kinds here. I mean number one complaint is obviously if. There's any kind of league and sometimes it's a, it's not a roof leak or Wally. It's a HVAC system condensation issue. Or those are lingering effects that happen. And if you can eliminate those eliminated, most of your claims so asked a question you don't the number one punch list item is across the US. And I know we just talked about it his hardware, and what it is, is a lot of owners. They'll complain that the roof is leaking, but they won't complain about their hardware once during the building. So the lesson I learned is it's great to do post evaluations after a year. And I know the advocates this going through the building and just see how the owners using it, then sometimes there's design issues, like our anticipation was this room was going to be used in this way. And it doesn't work very Waller. He see they made changes they moved to TV screen or a cabinet system work out, right? Those things happen. But you like to know that. And it's funny how clients won't tell you that it doesn't work, right? So we found out in post evaluations that Doug. Oh, yeah. This is not exactly. What we thought. And it's like oh, that's interesting. So you'll learn a but be you can at least try to help them out and they feel like they have a friend, one story, I had does involve hardware was on a school, and I did one year valuation. I was walking through, and I was walking by the it was a toilet room for faculty was off the corridor. And I saw this hasp on the door. And I was like, what's that they said the hardware on the store you specified it wrong? I go, what are you talking about? And they said it went in the room the toilet room. They would come in and close the door. They put a half, bonnet like you would toilets. I said, are you kidding me? The teachers like well we didn't know what else to do. And that, that's not what we specified. And when I went back and look the contractor, put the wrong hardware on that door switched it with another door. So I said it just had a nice passage, latch on. It was like always open. So we all sit. We switched it in the problem when, when they said, what I wish I had known that they've been using it like that for a year. I think those post evaluations really help us out. Out the learn at things aren't always perfect. We tell clients complain, tell us what's not working. Right. We want to know 'cause we don't intentionally make things wrong or design the wrong. We want them to work out for you. We want you to be happy. Why gets that ties back into what Andrew said in. That's a that's not a design issue. That's a installation in a way or hope that there are there are designed issues though. I mean, let's face it, we're not perfect. And we do make mistakes. It's best to address them up front. And that's why evaluations post evaluations work while we should really do it within a couple of months, just to see how things are working out. Yeah, I find that sometimes in that regard the rooms that we design and the activities that when you're designing it, they tell you are gonna go on inside that room once it's being used. That's not what happens this a communication issue. I think if you're not dealing with the right people, then there say, well, this is how music class works. They're gonna start here and they're going to go there and we need to do this. And then when the, the different music teacher comes in or the actual you could be the actual one. Now that's not what? I do in my classroom now. That's not how we operate and so they get really mad about stuff that's built in somewhere and, you know, not the right way, and you're like, I, I never got to talk to you specifically. But somebody told me what you wanted. And so that's what we did. But sorry that, that was what you wanted. And now that, you know, they get kinda Matty's have it documented, then you could show them. And then you get out of jail free card, right? Because then they go okay SU told you that. But that's not true. So, okay, you're off to pronounce who's coming for you and then sues got numbered. Well, in trouble for sure. That's very call Mike to get us out of jail. Yeah. Hey, might make make sure you leave your car behind. Yeah. We're getting to the end of the episode and we leave the fun part for the very end. So are one leads with a good taste in her mouth. Right. We talked about that earlier today. But what I want to know is for the people that are listening. What is the one most important thing for a contract, like can you even boil it down to a single thing is there. If you say you're only going to do one thing, this is where you best put your efforts tour. So tonight, just talk really fast and say, like ten who can? Sure, okay, so first thing, honestly, read it reach contract understand it. If you don't understand something that an owner is put in front of you, you like contract language should be accessible to anybody who can read because ultimately, you're going to be performing, according to the contracts if you see an indemnity clause that is just all twisted and mangled in the way it's worded. Tell your owner. I don't understand this. I don't understand this and I, I want to live up to my contract, but I can't live up to something that I don't understand. So regia contracts scrutinize him. And if they don't make common sense. Then strike that language out, or at least considered talking to your owner and saying, I don't understand this language. Let's get it boiled down to something that, that I can understand then I can sign the agreement. There's all kinds of other things to think about just off the top of my head indemnities a big one often times that is a very important risk, shifting type of a provision, so scrutinize those and hire an attorney to look those over talk to your insurer repeal I insurance carriers, all oftentimes they'll review contracts for you. Tell you what you've probably got a few too. So besides what you just said. Number one for me. My answer would have been understanding or obliga- Sion's as architects and not just myself. But everyone on the team so often, he'll send a Representative out and the client will say, for example, since we're talking about interior documents. Can you provide this interior design form is part of the project? And of course, the person in the field who didn't read the contract says, oh yeah. We can do that. Not understanding. It's an additional service wind up going. Through the legwork doing it. And finally, somebody who really understands like project managers as eight that wasn't in our original scope work. The clients is I wouldn't have paid for it late now too late yet done. So understanding your obligations up front, everybody on the team and trying to help the owner understand their obligations as well that if the balls down to anything that's what I would do. Good. Takeaways. A few more time. Yeah, go ahead and tell us all right. So don't agree to anything that isn't covered by your professional liability insurance. Right. So you can contract to more liability, and more responsibility than your insurance will cover typically repeal I insurance, your insurance will cover your negligent acts and that's it. And if you are doing things in agreeing to warranty, something if you're agreeing to go beyond what the architects, standard of care is so you're agreeing to be perfect in some way, that you're going to be the best architect in the state of Texas. You know, then, then yeah, it's, it's possible to agree to more responsibility than your insurance will cover. So the best negotiating strategy with an owner as if you get something that they're asking you to do that. Feels piece of contract language that feels a little bit overstepping say can even talk to my insurance company to see if it's cover because I can't do something for you. That's not covered by insurance. Other things, make sure that you align your prime contracts with your consultant agreement. It's so for example, if you don't have a limitation of liability in your owner architect agreement, don't give all your subs, and your consultants limitation, liability. I've been involved in a few of those, and it can be the amount of dispersed shifting that happens in that scenario is pretty remarkable where a mechanical engineer, for example, that was responsible for a ten million dollar error gets out for sixty thousand dollars. But the architect then has to continue on the lawsuit simply because they didn't have limitation liability in their upstream owner architect agreement. You think about those kind of scenarios, and wanna make sure that, but every agreement you got with the owner. You're passing those things all the way down and not giving up more than you're getting from the owner. If that makes sense. Sure, are they does to me anyway, because I know what you're talking about. You gotta have those people held to the same stuff that you're hell to sure. Absolutely. So how does it actually work because the owner architect agreement in the contract. Language that set between those two parties. How do you pull in the contract that your EMMY p engineer sends you into the same language or stupid idea to say, I want you to go back and add this paragraph to your contract? No science to they have to abide by your contract with the owner. Exact same anything that owner is making me responsible for you are responsible for as well as downstream that goes down. So, so do you add that language to their proposal that they send to you or the company entre? And then, then they should say what you need to send me a copy of your contract do. Yeah. I do. Yeah. It's there. I mean I'm Mark out some stuff but not to be salesman for a docks. But you know if you use the Izhak Occidental coordinate in that manner. So you've got the architect consultant agreement will reference the prime agreement. So it's all kind of. Bundled up there. So you, you know as long as you're referencing back to that prime agreement and all the terms in there. Then you've you've got continuity on tracks, hopefully covered or covered the best you can. Yeah. Okay. I have more questions, but it'll be cute far of a rabbit hole. So I'm gonna have a beer we'll have a beer and I'll ask you the questions off air. It really has to do with the difference of, you know, a lot of projects, I do like I do a lot of residential work. And so I don't use a lot of AI contracts. His owner's fined him scary. If I go to a homeowner say, I'm doing a house for you, and I hate him this lap document. There's smaller smaller smaller. But didn't sometimes I'll have EMMY EP engineers restriction engineers on those same projects. And I've never had like get an a contract then between Mike consultants on a residential project. Everything seems to be just a little turned down a little bit more looser in that environment. But the money's no different. I do houses that cost more than some schools that get built, you know, we talk about those issues a lot about how complicated or how dense contract talks can be. I mean, if you wanna one owner architect agreement, something like eighteen to twenty pages in its dense, we don't double space, but homeowners even homeowners. There's a millionaire with their k- with dense documents think of the home, you just bought, you know, your home, you bought you got a thick pack documents there. And you're expected to read it and somewhat understand it. So it's, it's not alien to be put a fairly dense pack documents in front of someone. And then I can tell you that the b one on one is far more understandable. In simple. Then my mortgage agreement or my real estate purchase agreement is so, but the analogy comparison to certain extent breaks apart because let's say that I'm hiring one of the two of you to do my house for me in you hand me, your three page hourly services contract in you hand me one. That's eighteen pages. Single spaced, very dense. And I look at your both charging me the same amount. You're less scary, as opposed if I'm buying a house in either your my mortgage, broker or your, my mortgage broker. You're paper works going to be the same. Yeah. Right. Let's, that's a good point. And, and that's definitely something that we know the folks who do residential work in particular, are dealing with constantly. And that's why we did create the it's the b one of five is our, our most slimmed-down owner architect, Raymond four or five pages or pages. And it's got a lot of the core concepts in it, it still is missing some of the more nuanced provisions. So I wouldn't you know, as I would responsibility sections or at about responsible for what kind of it gets too. Dyke's to the main points though ownership of documents. And that's a big one. And, but it does at least touch on that it touches on disputes. How the resolve those kinds of Corey issues, it's still gets too, so we've be one, oh, five there it is there a threat. It's all the risk and you're absolutely right. A homeowner for some reason to trust realtors. And why would they I don't know why they don't trust architects. Are we scary or something? But you're right. If you throw it eighteen page contract that of going gonna like, oh my God. What is this, and they're not gonna read it? Let's face it. They don't get it. I mean because honestly in who reads their mortgage paperwork, either the right? Say you sign it. That's where you're at. That's why you're. And the cash and you get to reading it all the way through and understanding, and then they tell you, you can't change anything so so I'm going to wrap up the podcast, the technical part of it. I mean, the really fun part. We're just going to do the boring hypothetical his point. But it happens to be my most favorite part. You're both familiar with hypothetical questions. Yes. So your hypothetical question for this episode is if you had no physical or mental requirements for sleep. What would you do with that extra time? And do you think it would change your life? So just to clarify the question here this is. So I still have to go to work, obviously. Yeah. You're you're still got his unchanged. Hey, so these hours are going to happen tonight unless you have a job that works in, I can't go play softball for eight hours after midnight. So you may but that could be part of the answer. Your question, you might say, well, now all sudden if I have twenty four hours a day to fill and find a midnight around your mind you might shift your jobs around a little bit so that you do have daylight off hours. I like that. You're that midnight to eight AM attorney. Yeah. Perfect. Sounds really great. I think the clientele coming in and it's going to be top notch. Yeah. Whom? Right. So I I've stammered on demure it a little bit. But am either I yeah. Got it. Okay. You stepped up. So I figure out a way play more softball. Hang out with my family more. The almost three year old daughter, and I don't get to spend time with her in the other six hours, I would probably tell you that I'm gonna read books, I'll probably video games though. 'cause I like video games. You're honest about. Yeah. I do like video games, and I never get a chance to play him. So I'd have a big screen, and I'd, I'd play a lot of first person shooter. Yes. That is so funny, because when I told my wife, I have a fourteen year old daughter, and I told my wife and my daughter that, this was the question you're gonna get and my daughter starts saying all these things more because that is total garbage, you would sit there and watch YouTube videos and play video games and my daughter's like no, I wouldn't. And my wife's like, yeah, you would come, of course. Yeah. Scillies least you're being honest about it. And sure I'd, I'd have sore. Thumbs Salvi, fared out, what you do with all this extra time, when, you know, it's interesting, you don't be funny Succo. I would start a homeless shelter like make your answer. You're like he's gonna play video games, and you're gonna like make the world. A better place. It's funny said that because that's part of the answer. But one thing that came to mind is daylight. So obviously, there's still seven hours darkness, and so what do you do at night was interesting? I when Mike Sansa was nighttime softball. While I would do the daytime things because as architects were inside a lot, and I like to be outside. So I would take advantage of flip it around and I would work at night to do the things, I'd do at night so they can spend more time outside during the daytime, and I feel same way, I would spend more time with my family, because although I'm assuming nurse leap and bet night, too, but, and then I also thought about how do you help humanity? I mean my dream in life, I'm not kidding. You bet you even life while Mike you live. Doing six hours of video games. I would I would be like to be outside, and I like to come into gardening and raising fruit trees and things like that. But the other thing I would do is help people reevaluate, their life and train them to do certain things and try to get them back under feet. But that being said, I would definitely put more time into my family life because we work all day when they're up and the only time I see my kids as an hour before dinner. To try to shift some of your daytime workload to the night was like you don't start work at sun up and work until regular quitting time. You only work part time shifted to afternoon goofing off with the kid be more efficient with the daylight. I mean I, I don't mind. Mike could have done. He said, I read contracts at night and play softball during the dense, right? You could've you could've said that. Well, I just see him but now he's playing video games during the day he's like now play softball. Like I'm going to stick with video. Yeah, not changing my answer. I'll, I'll say this. And it was kind of funny when I asked my daughter about this. She's like I'd still sleep. And I was like you're not required to sleep. She's like what, what, what else am I going to do? I'm not required to sleep, but he didn't say I couldn't sleep those I was just actually thinking about that. Yeah. So I thought about it myself. And there's all these things I align with what Mike said. Like I tried to rationalize it. My brain is to say, oh, how could I shift some of my daytime activities to nighttime when everyone sleeping if I have to draft or from doing designing just do that at night, when it's quiet and peaceful, and I can be focused? And, and I think I would do some of that, for sure. But I also think I just get bored. And I think it's a real possibility that I would go get another job like I would go somewhere just to have something to do. To fill my time other than 'cause I I've tried sitting around doing nothing offer y at local warehouse. Yeah. I mean Louis I think I would do that. Because like we've all been you've been sick and you're like home for a couple of days and you just get stir crazy now. And there's so much is laying around like I'm sick watching HOGAN, heroes or dislike nothing said great anymore. Nobody even knows what that show is. Everything but yeah but he started out there. Yeah. And so I, I do I think I'd probably end up getting another job and then I'd, I'd keep all that money. And by video games. I can borrow. Yeah. Well, I think about it. I mean, this is totally relative, my current state. I would use that extra time to exercise do healthy things. I don't feel like right now. I don't have enough time to take care of my body the way that I should. And so if I didn't have to sleep that was part of taking care of my body, I do other stuff, you have like one hour, you know. No, no. Because I used to I used to run when I was younger run marathons. So I'd go run for three hours two hours every day. So I could go do that not every day. But I'd take some time he likes to always really tear down line ideas. My tip get your knees replaced eventually, but it would be the whole time, but I mean, I think it would be something you had a lot of time for surgery. Time for that. Learn learn how to do my own surgeries. But I think exercise would be the biggest thing that if I didn't have to sleep, that would be the first thing, and then the second would be spending trying to figure it has been more time with my family somehow in work at night is my favorite anyway. That's when I do my best work already is when it's quiet in there's nobody around and I can't do that in the early morning. I'm a late night person anyway. So twelve midnight till like, four AM would be like my prime hours 'cause usually right now it's about eleven to two. It's my prime time to really get focused anyway. So that's so interesting. Okay. I'm going to call it a wrap. So as you can see the legal portion of architectures full of issues that can impact your overall ability to create great designs. Also, it can impact your career in ways you may have never imagined. So the heart of this episode was to expose everyone yet another facet of the profession of architecture and how much information that we as architects are required. No, in pursuit of our ideas, internet. I would like to thank our guests might Kover in Sao for Astro for joining us today, and providing their expertise on legal matters of design if you like today's episode and you can find it in your heart. Please take the next thirty seconds and head on over to itunes or your favorite listening app, and subscribe, so you get fresh, new episodes, automatically downloaded to your podcast player of choice, every two weeks, while you're there, but only for feeling generous, please leave us some feedback as we've really like to hear your thoughts on the show and a five star. It doesn't count, if it's in pencil rating, be sure to visit the original life of an architect dot com for show notes linked info photos from this episode also be sure. Stick around to the very end and will attempt to reward you with our own version of a blue Correa. Thanks so much for tuning in fig it easy. Everybody chairs. Thank you so much. Thank you for heaven's. How CLYDE you both could be here. We appreciate it. Thanks so much. Guys, this legal talk is making it. So I have to turn the page everyone's being cheap print on both sides of the paper. See the planet screw the planet at okay after turn it over, because it makes noise. Yeah. Exxon what makes noise that's really what it is. Right easy. You guys are now the fun part here. And that was that was a serious part. Now, we can do we were having. All right. More fun, all coming relative south yet to this true. All relative wasn't enough laughing in there for it to be a lot of fun direction, make don't look at me either, I know what isn't that? We normally sit across each other. So this is or have. No, you're learning. I like.

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