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Subject: Customer Changes Permit Drawings During Construction

1.  Customer Changes Permit Drawings During Construction

Posted 05-14-2017 21:39
I build solar energy carports throughout California.  These are simple structures with a tilted canopy facing an optimal solar orientation.  We design and permit these projects with a clearance above the parking lot of at least 10 ft.  We have a customer that has been lowering this clear height at their own descretion, during construction, usually to 9 ft or 9 ft 6 inch.  They state that this is to satisy neighbors.  From a structural and ADA perspective, lowering the structures is still code compliant.  I would like some insight into how I should respond as Architect of Record for these projects.  Thank you !!

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William Adelson AIA
Senior Construction Manager
SunPower Corporation
Ramona CA
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2.  RE: Customer Changes Permit Drawings During Construction

Posted 05-15-2017 17:58

There are several disconcerting things about a client in this case it sounds like a contractor, who will willfully and knowingly changes the design or intentionally deviates from official submission drawings during construction. A submission which I must presume have been sealed by you as the architect of record. Especially if this is a client for whom you work regularly. First I must ask, if they want or need to adjust the total height to be lower and it is done to accommodate site lines, views or other considerations by adjacent property owners why would they not communicate that to you and have you reflect the preferred solution in the officially developed permit submittal plans from the start? This is even more true if this is a standard or template design solution that you jointly repeat often. Involving you in the design process would be the correct and likely only real way to address this. If however they don't discover that that a change needs to be made until after the building or carport is under construction I would still think the proper process is to bring the proposed changes to your attention, have you develop a revised submittal and make an official addendum/revision submittal to the permit documents showing clearly to the reviewing entity what has changed. This also would serve to keep the appropriate parties involved and accountable for the proper chain of decision making and reviews. While they might get away without a building inspector noticing or calling them out for any one change the process of changing the design without your involvement violates the basic nature of the relationship between the appropriate parties. Just because drivers get away with speeding doesn't make it right or legal.



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Ronald Reim AIA
Executive Vice President
Oculus, Inc.
Saint Louis MO
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3.  RE: Customer Changes Permit Drawings During Construction

Posted 05-16-2017 19:36

Ronald:

 

One additional consideration is related to your point about the original intent of your design. You established the minimum clear height to accommodate a variety of vehicle types and sizes for the end users. Any modification from this standard design should be clearly stipulated to the end user. A potential liability exists for you as the AOR if someone is damaged because the design intent of a minimum clear height is not provided. It would seem the AOR would need to issue a qualification stating any modification to the Architects design without the written approval of the Architect is at the sole risk of the contractor (or other contracting entity). This provision should likely need to include an appropriate indemnification clause to ensure the Architect is protected from any unauthorized change.

 

 

Kevin L. Wilcox, AIA, LEED AP

Principal, Architect

Comstock Johnson Architects, Inc.

Mather, California 

 






4.  RE: Customer Changes Permit Drawings During Construction

Posted 05-18-2017 10:56
Something to the client clearly stating that the project was not built per your plans should be all you need. Usually in the contract, during the construction admin phase, there is something that states that the architect should advise the client if the project is not being built in accordance with the drawings.

Also, in the event of a claim, you will be able to prove that the project and your plans as permitted do not match.

Betsy Nickless, SDA/CDFA

Business Manager

MARK SCHEURER ARCHITECT, INC.

20250 Acacia St., Suite 260

Newport Beach, CA 92660

(949) 483-8688






5.  RE: Customer Changes Permit Drawings During Construction

Posted 05-15-2017 18:27

There are several disconcerting things about a client in this case it sounds like a contractor, who will willfully and knowingly changes the design or intentionally deviates from official submission drawings during construction. A submission which I must presume have been sealed by you as the architect of record. Especially if this is a client for whom you work regularly. First I must ask, if they want or need to adjust the total height to be lower and it is done to accommodate site lines, views or other considerations by adjacent property owners why would they not communicate that to you and have you reflect the preferred solution in the officially developed permit submittal plans from the start? This is even more true if this is a standard or template design solution that you jointly repeat often. Involving you in the design process would be the correct and likely only real way to address this. If however they don't discover that that a change needs to be made until after the building or carport is under construction I would still think the proper process is to bring the proposed changes to your attention, have you develop a revised submittal and make an official addendum/revision submittal to the permit documents showing clearly to the reviewing entity what has changed. This also would serve to keep the appropriate parties involved and accountable for the proper chain of decision making and reviews. While they might get away without a building inspector noticing or calling them out for any one change the process of changing the design without your involvement violates the basic nature of the relationship between the appropriate parties. Just because drivers get away with speeding doesn't make it right or legal.


Ronald,

Much thanks for taking the time to reply and for asking "spot on" questions.  So Answers:

  1. Yes, my seal as AOR
  2. Yes, many projects with this customer
  3. Yes, lowered for Site Lines, and yes, it was discussed.  At the start, I stated that our standard clear height is 12'-0".  This has been our standard for literally over 100 school sites in Cali.  This clearance avoids school buses (10'-6") and most maintenance vehicles.  I agreed to lower to 10'-0" clear as a concession, stating that this was the minimum we would advise.  (This is nominally based on the judgement that a basketball hoop is designed to be "just out of reach of most humans", which would include teenagers that might like to have fun with the electronics in the canopy.)
  4. The projects are super fast-track build-outs, so the customer undoubtedly felt that this was the best route to circumvent my advice.  A "standard revision process" would not have worked with these schedules.
  5. While they certainly  "violate the basic nature of the relationship between the appropriate parties", I am most concerned that I am missing some underlying legal (or insurance) issue that could cause harm to my company or to the school district.

Thank you again, and I would love to have your further comments !!

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William Adelson AIA
Senior Construction Manager
SunPower Corporation
Ramona CA
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6.  RE: Customer Changes Permit Drawings During Construction

Posted 05-16-2017 17:45
In order to reduce your possible liability from unauthorized access or damage to the roof or vehicles hitting it, I recommend that you first check with your surety and get their position on it.  It may be that they have no position, but it is more likely that they will not insure you against a third party suit if you have had knowledge of the problem and did nothing about it.  After getting surety's input, and possible guidance, you should meet with the client and talk to him or her about the problem, and follow up with a nicely worded letter expressing the same concerns and stating that as a result of the changes, your liability is limited and you cannot be held responsible for injuries or damage caused by access or high vehicle damage. 


James T. Brown, AIA, ASQ,
Principal, QAE Consultants
10090 E Charter Oak Rd.
Scottsdale, AZ 85260
Cell: 602 663 1665
Alt. Ph./Fax: 480 219 2583





7.  RE: Customer Changes Permit Drawings During Construction

Posted 05-16-2017 18:02
William,

I'm not sure if the anxiety is about someone meddling with your design, or not telling you what they did (with your stamp on the documents), concern about the long-term use, etc. ...
But - "many projects with this customer" sounds like you have a basic design that is replicated over and over again.

What about adding a few notes / dimensions: show the range of suitable heights (10'-6" to 13'-0" for example), include calculations that show your members and connections work for the extremes, AND put a big boxed note stating the recommended heights are selected for clearance to most common vehicles on school sites And that lower heights must be authorized by the school district and that 10'-0" or below (you pick) is at their own risk.  Won't keep you out of legal action when a bus strikes one and in falls on a group of students, but might give your lawyer what they need to keep you out of court.

By involvement over and over with a "prototype" "product", your liability exposure might actually be higher - this isn't a one-off, with construction surprises around every corner, but verging on a manufactured product, and we know how that goes with automobile recalls.  It wouldn't hurt to call your insurance broker for a quick discussion or two. 
--
best regards,
Joel Niemi
- Architect
425.422.4276
jniemiarchitect@gmail.com
http://www.linkedin.com/in/jniemiarchitect





8.  RE: Customer Changes Permit Drawings During Construction

Posted 05-16-2017 02:21
There is one other issue you or your client may wish to consider.

Is there sufficient room for rescue ambulance access such that the ambulance do not need to make 3 point turn under the canopy to get out? Freight-liner rescue ambulances are more than 9'- too close for comfort. maybe prudent to check with the AHJ on this matter.

Geok-Ser


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Geok Ser Lee Intl. Assoc. AIA, LEED AP
Owner
GSLA
Irvine CA
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9.  RE: Customer Changes Permit Drawings During Construction

Posted 05-16-2017 18:35
Much thanks to all for your comments and suggestions.  I will suggest that we involve our insurance broker, and perhaps the District will get some exculpatory language from us.

Other thoughts welcome, and thank you again!!

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William Adelson AIA
Senior Construction Manager
SunPower Corporation
Ramona CA
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10.  RE: Customer Changes Permit Drawings During Construction

Posted 05-18-2017 21:30
William,  I am a bit confused about exactly what you do, and what you do not do.  In your original post, you say "I build...".  In the second sentence you say "We design and permit...".  You then say you have a customer that builds the structures, using your signed/sealed/permitted documents, but the structures do not conform to your documents (or presumably the permits that were obtained by you).

Without knowing exactly how this relationship works, I will make a few overall observations:

When your sealed documents are used to obtain a permit, the party 'securing' the permit is obligated to build in accordance with them.  No exceptions are permitted unless approved by the party that sealed the documents, as well as the agency that issued the permits.  Despite what some may advise, even if a field inspector 'says OK', that is not appropriate (the builder is still obligated to have the AOR revise the documents and resubmit them for official approval by the agency).  No builder or agency has the right to make changes to your sealed documents without your consent.

So, if you (as you indicated) both sealed the documents and secured the permits, you are on the hook to ensure the structure conforms to the original design.

Going a bit further, if you, as the AOR, know that a structure has been built in contravention of the requirements in the sealed/permitted documents - and if you also know the builder does not intend to cure the violation on its own - you are obligated to inform the agency that issued the permit.

Although this may seem a bit of an overkill, procedurally, it is both necessary and designed to protect the public health and safety.  At the same time, it protects you, as the AOR, from liability in the event the improperly-constructed structure results in harm to property or persons.  If a 'damage' flows from the non-conforming structure (and you are subsequently embroiled in a lawsuit), if your insurer learns that you knew of the violation and took no action it will likely deny coverage (leaving you exposed to potentially millions of dollars in a judgment in the worst case, a death).

Although you are talking about a 'small job', the same principals apply for structures of all complexions.

As others have suggested, you can resolve the situation by creating signed/sealed documents that provide for multiple configurations (one or several different 'sets' of CD's), and then have the builder apply for and secure the permits.  A simple solution for which your 'client' should pay you appropriately.

CAVEAT - I am not an attorney and am not offering legal advice.  For legal advice, consult an attorney that specializes in construction law.

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Howard I. Littman, AIA, Emeritus
Forensic Architect, Expert Witness
Agoura Hills, CA
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11.  RE: Customer Changes Permit Drawings During Construction

Posted 05-19-2017 10:18
Howard.  Thank you !!

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William Adelson AIA
Senior Construction Manager
SunPower Corporation
Ramona CA
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