Proper Documentation Can Be the Key to Dispute Resolution

Ever been told to dance like nobody’s watching? 

That advice is great for weddings and end-zone celebrations. But after wrapping up a week-long trial, your exhausted, cynical lawyer probably thinks “write every email like it will one day be a courtroom exhibit” is far better advice than the dancing thing.

This might sound needlessly frightening, but for construction professionals working on challenging projects, documentation can make or break the ability to successfully negotiate — or, if it comes to it, prove the merits of — a dispute with another party. 

Below are some items that, if handled properly, can help companies establish their side of case and that, if handled poorly, can constitute problem areas. 

Contract Documents and Statutory Notices 

Many legal rights on a project come from the parties’ written contract agreement. Basic measures like ensuring the both parties have signed — and not just received — the contract can be crucial to preserving these rights. It is also a good practice to keep a copy of the signed contract and all attachments in a location where it is accessible to project managers and others who have authority to deal directly with the other party. As always, reading the contract in advance, and perhaps consulting with an attorney before signing the contract, is an important practice. 

Having a checklist for every project can also help ensure that good practices are routine, and not just employed for especially difficult projects. If practices are done on every project, no matter the size or complexity, it is easier to ensure that companies will comply with them. 

Potential project checklist items include: 

  • Has a written contract been signed by both parties and saved in the project file? 
  • Are certificates of insurance on file for all subcontractors? 

Checklist items for privately owned projects: 

  • Have any statutorily required project statements, notices of contract, or notices of subcontract been properly filed and served? 
  • Have any statutory prerequisites to filing lien claims been met — such as North Carolina’s requirement to serve a Notice to Lien Agent? 

Checklist items for publicly owned projects:

  • Has the payment bond been obtained?
  • If required by state or federal statute, has the payment bond surety information been sent to all parties?
  • Have statutorily required notices of contract or notices of subcontract been properly served or filed? 

Notices 

Most written prime contracts and subcontracts require parties to give written notice to the other party to communicate various things, like change orders, claims for extra payment, or the other party’s breach or default. Failure to provide notice using the proper means and by the required deadline can prevent contractors from asserting their contractual rights. To ensure compliance with contract provisions, ensure that a copy of the contract is accessible to the project manager and that notices are dated, signed (if applicable), and that copies of the notice are preserved. If notices are sent by email, a good practice is trying to obtain a delivery or read receipt. Notices to cure should state specifically what is expected of the other party in order to cure a default and what will occur if the other party does not cure the default. 

Where Notices are concerned, do the following:

  • Keep a copy of the signed, written contract in a place where project managers can easily access it.
  • Send requests for change orders and additional time or money in writing.
  • Send notices to the right person. The written contract usually dictates to whom notices should be sent, and sending notices to a person with managerial authority is generally recommended. 
  • Consult with an attorney and send a written notice before invoking contractual remedies like self-correcting defective work, supplementing a subcontractor’s workforce, or terminating a subcontractor. 
  • Maintain copies of any letters, correspondence, or notices sent to another party, including copies of proofs of service like Certified Mail cards, email read receipts, or fax confirmation sheets. 

Confirming Emails 

Emails and text messages constitute the bulk of the written communication on most construction projects today. Both emails and text messages — whether they are sent from work or personal devices — are discoverable in legal cases, meaning that companies will be required to provide them to other parties in the case during the litigation process. This may be true whether or not the company or sender believes they are relevant. The implication is twofold: contractors should send emails and text messages with care and should assume that they could one day be seen by an opponent, judge or jury. On the other hand, when used effectively, emails and text messages can be used to accurately document parties’ agreements and understandings about what will occur on the project. 

With all communications, but particularly email, attorney-client privilege is an additional concern. The attorney-client privilege protects communications between an attorney and his or her client. The client has the right to keep these communications confidential in nearly all situations. However, the attorney-client privilege can be waived if communications are shared with third parties. The ease with which people can forward and share emails makes waiving the privilege dangerously easy. In some situations, waiving the privilege once can mean waiving it in future situations. 

Below are some do’s and don’ts that can result in helpful, not harmful, emails.

DO

  • Send emails to document conditions on a project. 
  • Send emails to confirm important conversations, especially ones about dates of mobilization or that contain notices. 
  • Respond to any emails that accuse you or your company of failing to fulfill any contractual obligation. 
  • Ensure you have access to the emails of any employees who leave the company. 

DON’T

  • Don’t forward your correspondence with your attorney to others. This could waive the attorney-client privilege. 
  • Don’t copy people outside of your company on emails to your attorney. This could waive the attorney-client privilege. 
  • In a dispute over fulfilling contractual obligations, don’tlet the other party have the last word. If you are sent an email accusing you of wrongdoing, not responding to an email can make it appear that you agree with it. 
  • Don’t send emails from your personal account. If you ever need to pull and produce all of the emails related to a project, it will be much easier to do if you are only pulling from one account per employee. 
  • Don’t use profanity or offensive language or phrases. If there is anything you would be ashamed of a judge or jury seeing you say, think twice before typing it. 

Daily Reports and Photographs

Daily job reports, if done well, can serve as a diary of what occurred on a project. While emails can be helpful, too, photographs do not lie, and daily reports with objective information like number of workers, hours worked, and weather conditions can effectively corroborate a company’s narrative of a story or dispute another side’s version. 

These types of documents typically have to be authenticated in court in order for them to be admissible as evidence, so if possible, it is best for the person who wrote a report or took a photograph to be able to testify about the origin of the document itself. 

Recommended procedures include: 

  • Have competent, trusted employees, such as project managers, take photographs and complete daily reports. 
  • Have a system in place for uploading photographs and saving them in the construction file so that they are centrally located, not just stored on employees’ individual phones or tablets. 
  • Ensure all photographs are dated or otherwise stored so that dates and identities of the people who took the photographs can be accessed. 
  • Complete daily reports documenting conditions like date, weather, number of workers, and anything pertinent occurring on the project site.  

About the author: Caroline Trautman is an attorney with Raleigh, N.C.-based Anderson Jones PLLC. Questions about this article can be directed to her at ctrautman@andersonandjones.com.

Author’s note: The above article is not, and should not be construed as, legal advice. For specific advice, consult with an attorney licensed in your state.

Roofing Alliance Looks to Fund Projects for the Betterment of the Roofing Industry

The Roofing Alliance, the foundation of the National Roofing Contractors Association (NRCA), announces its annual Call for Funding.  Committed to promoting and funding the advancement of roofing through research, education, technology and philanthropic programs, every year the Roofing Alliance funds critical research, education and technical projects for the betterment of the roofing industry.  This year’s submittal date for funding applications is January 1, 2019.

The Roofing Alliance has allocated more than $5 million to fund 46 research, education, technical and philanthropic programs and projects to support high-quality educational programs and ensure forward-thinking responses to economic and technological issues.  For 22 years, the Roofing Alliance has beencommitted to shaping the industry’s future by funding education, research, scholarships and philanthropic initiatives, all for the purpose of securing the industry’s future excellence.  

“It plays a critical role within the industry,” Josh Kelly, incoming president of the Roofing Alliance and Vice President of Product Development & Innovation of OMG. “The advances we have made during the past few years are a testament of how successful we can be when everyone within the industry works together. I am convinced the more participation we can get through funding initiatives, programs and membership, the more we will be able to offer unique opportunities that make a difference in shaping the future of the roofing industry.”

Ultimately, the Roofing Alliance looks for projects that enhance the performance of the U.S. roofing industry.  A few of the projects funded to date include: 1) A partnership with Ronald McDonald House Charities® to adopt the roofs of 165 standalone houses in the U.S.; 2) National Women in Roofing Day sponsorship; 3) Industry demographics survey; 4) NRCA ProCertification support; and 5) Construction Management School yearly competition.  

The Roofing Alliance is composed of 166 members representing extraordinary leaders from the contracting, manufacturing, distribution and service provider communities. These individuals have committed over $13 million to enhance the performance and long-term viability of the industry to current and future workers.

Requests are due by January 1, 2019.  For information on specific criterial and the funding review process please visit www.roofingalliance.net/About/Funding.    

New Visualizer Tool Assists Customers with Paving Projects

GAF has launched a visualizer tool to help sell its StreetBond Pavement coatings. Created by Chameleon Power, the leader in visualization technologies and GAF’s partner in roofing visualization tools, the StreetBond Visualizer assists customers with envisioning the outcome of their paving project prior to installation.

Users can select from a variety of different StreetBond coating colors and StreetPrint patterns, and apply to their own project photos or drawings. The tool also features a “Need Ideas?” button that gives the user some starting patterns and colors to help them in making design decisions. “GAF has utilized Chameleon technologies for nearly two decades, and continues to embrace our next generation tools and concepts,” said Dan Dempsey, President of Chameleon Power. “Visualization is a standard in the construction industry, and we are proud to partner with GAF to provide this experience to GAF customers.”

Chameleon Power visualizers shorten the design cycle and enhance customer satisfaction. Websites that utilize Chameleon visualizers enjoy increased user time of more than 3X and sales closure rates of more than 75 percent.

To view the GAF StreetBond Visualizer, visit https://streetbond.chameleonpower.com.

Ridgeworth Roofing Company Showcases Commercial Roofing Projects on New Website

Ridgeworth Roofing Company has launched a new website, www.ridgeworthroofing.com, to provide an even better user experience and showcase the company’s exceptional commercial, institutional, condominium, and industrial roofing projects.

“All of us at Ridgeworth Roofing are proud to have served the Chicagoland area for 44 years,” said Rodney Petrick, Owner and President. “We’re also proud to announce the launch of our new website, which is designed to provide our current and future customers with a wealth of information about how we can provide them with the best products and service available in the roofing industry today.”

The new website features a project gallery that includes photos and details of a wide range of roofing applications on buildings such as schools, warehouses, commercial buildings, and a 36-story Chicago high rise.

“We’re excited to present in even more detail the extensive skill and expertise of our team,” said Petrick.

Ridgeworth Roofing is a family-owned business, founded in 1974 by Petrick’s father, Robert Petrick. The business continues to thrive today, driven by the same passion and dedication to customer service that Robert Petrick brought to the company at its start.

“Our company is more than a business,” said Rodney Petrick. “It’s a family legacy. Every project we take on advances the tradition of excellence in both craftsmanship and customer service my dad started in 1974.”

Ridgeworth Roofing’s commitment to customer service extends into its dedication to the local community. In addition to offering superior service at a fair price, the company has provided materials and labor for a number of charitable roofing projects.

A leader in the industry, Petrick serves as a member of various professional committees and has held key positions in the National Roofing Contractors Association (NRCA), the Chicago Roofing Contractors Association (CRCA), and the Midwest Roofing Contractors Association (MRCA).

“Our new website is an attractive and engaging starting point for potential customers to see what we can do. We then encourage them to contact us about how we can solve their commercial or industrial roofing problems, no matter how complicated,” said Petrick.

For more information, visit www.ridgeworthroofing.com.

Working From Home

After more than three decades working in an office setting, I recently joined the ranks of the people working from home. The situation has its obvious advantages — my commute time has been cut down to less than a minute — but I must admit I’m still getting used to it.

There are a few problems I’ve encountered in my home office that I didn’t have to cope with before. The other day our cat, Boo, ran across my keyboard and renamed a file “;;;;////.” Luckily it jumped to the top of the folder I was working in, or I’d probably still be looking for it. I’ve gotten better at timing the delivery of a Kong toy stuffed with peanut butter to keep our dog, Josie, from barking during phone interviews, but it still sometimes happens, especially when packages are delivered on our block.

Working from home and working in an office have their challenges, but I realize how lucky I am. Every week I talk to people who work at the top of buildings large and small, making the roof of a commercial building or a home their temporary office. I’ve learned each jobsite has its own obstacles and its own set of risks. Each project also has its own rewards.

This issue puts the spotlight on hospitality and entertainment projects, and as a sports fan it was a thrill to cover stories about new construction projects including the PVC roof installation atop U.S. Bank Stadium in Minneapolis, and MB Arena in Chicago, the practice home of the NHL’s Chicago Blackhawks, which sports a TPO roof and two garden roof systems.

This issue also explores the roof renovation that took place at Quicken Loans Arena in Cleveland, known as “The Q.” The project was completed during the Cavaliers’ historic NBA World Championship run and while the Cleveland Indians were hosting the World Series right next door at Progressive Field.

Working from home has its small hurdles, but making sure the jobsite looks pristine when viewed from a blimp is not one of them.

That was the case in Cleveland, where crew members worked on their hands and knees to restore the roof under the giant LED sign at The Q before the World Series. It was also the case in Chicago, where Willie Hedrick of All American Exterior Solutions in Lake Zurich, Illinois, was proud to see his work on display during aerial views televised during the Stanley Cup playoffs. “When the Blackhawks went to the Stanley Cup championship and the blimp was hovering over the arena, I could see a couple of my projects on TV,” he noted. “It reminded me of all the time, effort, attention to detail, and collaborative hard work that it took to produce the final product.”

Remind me never to complain about my cat ever again.

OMG RhinoBond Projects Are Being Completed Across Europe

OMG Roofing’s RhinoBond System has left marks across Europe with more than 125 completed projects and more in the pipeline. Collectively, these projects represent more than 300,000 square meters (3.2 million square feet) of single-ply roofing.

“In last two years, the RhinoBond System has started to take off across Europe, as more roofing contractors have seen the roof performance benefits that the system can offer,” states Web Shaffer, vice president of marketing for OMG Roofing Products. “We have completed projects across Europe and we are expanding to new countries in the region, most recently, into South East Europe.”

RhinoBond is a method for installing thermoplastic and now also clean EPDM membrane. The system consists of a stand-up induction welding tool and magnetic cooling clamps. Contractors install roofing insulation using fasteners and specially coated plates designed specifically for the type of membrane being installed – PVC, TPO or Clean EPDM. Each plate is then bonded to the roof membrane installed over the top with the RhinoBond plate welding tool. The result is a roofing system that can provide wind performance with fewer fasteners, fewer membrane seams and zero penetrations of the new membrane.

The RhinoBond System is approved for use in Europe by many roof system providers, including Bauder, Carlisle/Hertalan, Danosa, Fatra, FDT, Firestone, GAF, IcoPal, IKO, Renolit, Sika, Siplast, and Soprema/Flag.

Headquartered in Agawam, Mass., OMG Roofing Products is a supplier of commercial roofing products including specialty fasteners, insulation adhesives, roof drains, pipe supports, emergency roof repair tape as well as productivity tools such as RhinoBond. The company’s focus is delivering products and services that improve contractor productivity and enhance roof system performance. For additional information, please contact OMG Roofing Products at (413)789-0252 or visit the OMG Roofing website.

Work Order Software Saves Contractors Time

The Work Order tool offers templates that can be customized.

The Work Order tool offers templates that can be customized.

Scope Technologies has announced its debut of Work Order tool for ProDocs.

Now contractors can transfer real-time aerial measurement report data into real-time work orders in a few clicks, all on the ProDocs platform. Designed to be paired with Scope Technologies’ takeoff reports, the tool will shorten restoration and new construction contractors’ project timelines. As with Estimates, Work Order introduces a level of customization including line items based on materials, conversions and manufacturers. Templates that can be tailored to feature company logo and color schematics are also a highlight. Additionally, the tool Order communicates with contractors’ distribution channels and talks with retailers for added convenience, saving the contractor time.

With construction starts up 15% in 2015 and projected to increase another 6% in 2016, industry-wide trends indicate contractors are evaluating their strategies and streamlining processes to propel their businesses ahead of competitors. Check out ProDocs Work Order Tool here.

Project Profiles: Hospitality and Entertainment

Hilton Garden Inn, Cleveland

Team

General Contractor: HOBS Roofing, Canton, Ohio
Roofing Consultant: RS&M, St. Petersburg, Fla.

Because of the area’s harsh winter climate, the hotel’s reroofing project required a redundant roofing system that would be strong and durable. The SOPREMA system chosen is typically used in climates like this for that reason.

Because of the area’s harsh winter climate, the hotel’s reroofing project required a redundant roofing system that would be strong and durable. The SOPREMA system chosen is typically used in climates like this for that reason.

Roof Materials

Because of the area’s harsh winter climate, the hotel’s reroofing project required a redundant roofing system that would be strong and durable. The SOPREMA system chosen is typically used in climates like this for that reason.

Although the selection of this particular roofing system was easy, the installation presented a few challenges. The hotel’s roof includes a cell tower, containing a telecommunication terminal for all of Ohio. The installers had to be careful to avoid interference with the terminal when removing the original roof, as well as applying the new system. In addition, the mortar in some of the walls of the penthouse was deteriorating. The installation team had to flash in the ALSAN RS liquid system to keep water from penetrating and getting into the new roof system.

When the reroofing project began, installers first needed to remove the old coal-tar roof from the structural deck of the concrete building. Next, the deck was primed using Elastocol 500 and then a SOPRALENE 180 SP vapor barrier was heat-applied. This particular vapor barrier is commonly used in northern Ohio when reroofing.

Following the vapor barrier, the installation package was ready to be glued down using DUOTACK, SOPREMA’s low-rise foam adhesive. SOPRABOARD cover board was applied, followed by a layer of heat-applied SOPRALENE Flam 180 and then a heat-applied cap sheet of SOPRALENE Flam 180 FR GR. To finish the project, ALSAN RS 230, a PMMA two-part rapid-curing liquid flashing product, was applied over top in a custom color to match the roof to the aesthetic of the building.

Roof System Manufacturer: SOPREMA

Roof Report

Open since 2002, the Hilton Garden Inn stands 11-stories high and has 240 rooms. The hotel is within walking distance to Progressive Field and the CSU Wolstein Center, and is close to other downtown Cleveland entertainment and dining. The hotel features a business center, pool, fitness center and more. The reroofing project took place in summer 2014.

PHOTO: SOPREMA

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