FaŤade Maintenance and Local Law 11
Real Estate New York, April 2004, by John E. Osborn
Façade inspection, maintenance and repair has become a major focus during the past 25 years for owners of commercial and residential property. Despite this attention, property owners have not been able to take practical steps to maintain public safety by carrying out much-needed faŤade work in a cost-effective way. The following provides a road map for owners to ask the right questions - questions that are designed to elicit sufficient information to allow for the thorough and effective design and restoration of faŤades.
For the most part, providing legal counsel to commercial and residential property owners begins with drafting the contract to hire the restoration contractor. By this time, an engineer or architect has already prepared a study detailing the work needed and a bid package. Most often, if the project is in New York City, the study and the bid package are a product of a Local Law 11 study, and the repairs are required for compliance with Local Law 11.
Goals of Maintenance and Repair
Before the owner hires the engineer, ask the following strategic questions to determine the goals of the project: What basic information do you already have? Have there been faŤade and roof repairs made to the building over the past 10 years? Based upon the issues, what expertise do you need the engineer to have? How thorough a study do you need the engineer to make? Are probes needed? Are there water or moisture issues that need to be addressed at the outset to avoid damage to tenant space or to keep out the specter of mold? Are you allowing enough time to thoroughly study the issues? Is the project being rushed out to bid? Will the engineer's report simply meet minimum legal requirements or address long-term building maintenance issues? Will the plan unwisely cut corners? Will the plan be "money well spent" because it fits into an overall capital plan addressing deterioration of masonry, steel, and roofing or will it merely serve as a "band aid" or "stop gap" approach?
In most of these instances, I have found that the owner does not expect legal counsel to ask a lot of technical questions or to suggest an adjustment in approach or strategy.
Choosing an Engineer
More often than not, legal counsel is not consulted prior to hiring an engineer. We recommend the owner answer the following basic questions before analyzing which type of engineer to retain: Should price be the overriding factor or should specific expertise? If expertise within a specialization is desired, what type of specialization, references, and skills are needed? Have the forensic and investigatory nature of the engineer's role been adequately considered?
The Restoration Contract
Then, before signing a contract with the restoration contractor, ask the following questions: Is the engineer's definition of the scope of work adequate to comprehensively commit the contractor to perform? How much of a contingency must be carried for potential unknowns that may increase the contract price? Are the owner's or tenants' requirements for contractor access or restrictions in access to staging areas and work areas adequately addressed? Have schedule restrictions as to season or time of year or special owner or tenant requirements been spelled out? Have supervision, sequencing, site safety, dust control, scaffolding and rigging issues been adequately addressed?
Taking into account the risk management difficulties created by New York's Labor Law section 240, have adequate contractor insurance and indemnity requirements been set without creating inordinate added insurance cost? Has it been provided that scaffolding and sidewalk bridging is not to be used as a staging area for materials and workers? Have the business aspects of the contractor's price been adequately reviewed? Have the application of unit price, add/deduct alternates and potential additions and subtractions from the contract scope been thoroughly analyzed and put in writing? Has the right to suspend or terminate the contract been negotiated?
Failure to ask these questions is likely to end in a solution that will not fix the problem, that will not prevent water leaks, that will accelerate deterioration, that will require another restoration within the next cycle of Local Law 11. It has been our experience that owners who keep a checklist of questions to answer at each stage of faŤade restoration can actually complete a quality, cost-effective project with a minimum of disruption to their daily operations.
John E. Osborn, Esq. is a partner in the five-attorney, New York City and Chappaqua, New York, construction litigation and environmental law firm of John E. Osborn P.C.