Termination of Contract

[southard2]

I recently posted here a question regarding a Catwalk design that some of you might remember. Of course this was a portion of the design in a much larger project. My agreement with the architect per the signed proposal was that I would provide the structural engineering design, analysis, and construction administration but that he would provide all of the drafting including the drafting of the structural plans. After the first set of marks ups I sent him he had only included about 30% of what I had drawn. I received an email from him today basically stating that he wasn't going to draw anything he considered to be redundant (meaning that if a beam size or truss is called out somewhere on his architectural sheets he considers that redundant). Now this is only a small part of the story but basically he is refusing to draw the complete plans. He says because its design-build they don't need to be perfect since the contractor knows what is being built.

My response was that I refuse to sign and seal anything that is less than complete regardless of the delivery method. To that he responded that he doesn't have time for a pissing match so he asked me to send him a bill and he will move on. Now for me this was actually something I welcomed cause quite frankly there have already been enough warning whistles to send my blood pressure up, etc.... I have been very uncomfortable about how this project was proceeding for a long time and was just trying to suck it up and stick it out till it was complete.

So I responded today that I would only charge half my fee for hours spent to date if he'd sign a release letter. I think my release letter will have the following statements.

1) He understands I am no longer the engineer or record on this project.

2) I nor my company is no longer responsible or liable for anything related to this project

3) He understands that the termination of our agreement was before the plans were complete and were only about 50%.

Does anyone out there have a standard letter or verbage for something like this? What I'm afraid of is that this guy is simply going to take my last set of mark ups and finish them however he sees fit and then sign and seal them himself. Then later when the sh@#%@# hits the fan I'm going to be drug into a lawsuit. But I honestly feel that getting out now is the right thing to do for myself and my company. This guy is a loose cannon and I simply refuse to sign and seal anything below my standards. I refuse to not show all necessary structural information on the plans and in my opinion there wasn't anything redundant about what I was asking him to draw. The plans looked like some little kids was drawing them. They were in bad shape the last time I saw them. Problems such as not including the stud count on composite beams, no spacing dimensions, no sizes, etc....

Oh and for those of you familiar with my catwalk post. The final decision was to not worry about vibration however I'm pretty sure he never discussed this with the owner. So I was adding notes to my drawings. The catwalk was not going to be used as a corridor so it was simply going to be a catwalk with only one or two people on it at a time. Still I don't feel the communication was properly conveyed to the owner.

John Southard, M.S., P.E.

http://www.pdhlibrary.com/

 

[dik]

On a couple of projects where I have left the scene, I've placed a phone call to the Architect outlining essentially what you have and then followed it with a letter confirming our telephone conversation and stating that if he is in disagreement with the contents to reply within seven days. They never went anywhere.

Dik

 

[southard2]

Thanks for the feedback dik. I'm actually going to try to get him to sign my letter which I'm going to title as "Termination of Contract" basically outlining that we have come to an agreement to terminate engineering services, etc, etc...

I'm actually thinking about hiring a lawyer to write up the language so that I'm assured that it is enforceable. I'd hate to think I'm protected only to have it thrown out in court. This guy really makes me nervous. I tend to have a hard time saying no to people and I've regretted taking on this guy as a client from the get go. I was introduced to him originally by a friend of mine (unlicensed) who had done some engineering for him. This architect would seal his work. So I new this guy was trouble from the beginning but he seemed pretty reasonable at first.

I suspect he has presented drawings to the owner already and represented them as 100% though the structural drawings are only at about 50% seeing as how I can't seem to get him to label anything. I think overall I'm most troubled because all the guy had to do is draw it up just like I had marked up and we would have been very close to finished. I've worked like this with several architects over my career and yeah sometimes you have to defend your designs, and sometimes you might have a disagreement, but I've never had someone want to terminate a contract because they simply refuse to draw up what is marked. He must be pretty lazy or perhaps he figures he's got what he needs and this is just how he operates.

The bottom line is that to be an engineer of record I must have direct control over the production of the structural drawings and in this case I have a drafter who simply will not draw what I want. And this is just typical stuff. In fact I was lamenting that compared to most of my jobs this was going to be bare minimum. Yet he seems to think I'm beating a dead horse. Can't stand working for architects who think they are structural engineers.

Well I'll stop now I know I'm preaching to the choir.

John Southard, M.S., P.E.

http://www.pdhlibrary.com/

 

[demayeng]

We sometimes have clients wanting to do the drawing themselves (to save them money) and we sign them off, however pretty much everytime we've done this we spend more time marking up and going back and forth than if we had just drawn them in the first place. So we were just talking yesterday about how we are not going to agree to that process anymore!

 

[Teguci]

Lets hope none of us have or need a form letter for this kind of situation.

 

[Ron]

John...I agree completely with your stand and your approach to terminating the contract. I would not; however, attach a "percent complete" to what you have done. It is incomplete and does not constitute an engineering document under state law and leave it at that.

You also want some specific indemnity language in your letter....something like "Architect agrees to terminate this agreement and further agrees to defend and hold harmless John Southard, P.E. from and against any and all claims,including reasonable attorney fees, as related to Southard's performance and termination of services on this project." Run that by your attorney....he'll probably want to add more!

Good luck.

 

[Ron]

John...one other thing...don't reduce your fee. It might be construed as your admission of a wrongdoing.

 

[Ron]

Oops again...admission of "a" wrongdoing, not "your" wrongdoing.

 

[southard2]

Ron,

Thank you very much. I've been in business now for 10 years and have never had a situation like this. And he only had about 6 - 8 hours of drafting left which makes me think at some point he had already turned in earlier drawings that perhaps they are already bidding off of and simply didn't want to make changes. Or it could just be greed. He doesn't want to do all the work and would rather take my work and then do it the way he wants to do it. Of course I've had plenty of situations where I've knocked heads with contractors and architects but I've always managed to work things out in a safe way (usually they doing it my way or me issuing some kind of fix....all with solid engineering mechanics backing up the solution). But I've never had someone who just refused to do it. Its just very strange in my opinion cause I would think he has much much more to lose at this point.

At any rate my mistrust of the whole situation is now sky high and I'm happy to exit as long as I can. I've talked with a number of people today and have a recommended construction atttourney lined up for a conference call on Monday.

I appreciate the comments so far and I want to respond to them. I agree with Ron that backing the fee down might post a legal problem your right (It just looks bad). I'm curious as to what the lawyer will say. It has crossed my mind that I might be better off just terminating the contract without any fee at all that way he certainly would have no right to use the work and try to seal it under his name cause he would have never even paid for it. Everyone I've talked to today though says that if he sealed the work it would be illegal which I can't argue with. But lawyers can always make an argument. My signed proposal didn't have a firm committment for a time of delivery so I can't get hung on that.

Ron I also appreciate the point on not stating the percentage complete. My design calculations were about 80% complete. I had not yet sized the foundation for the metal building columns as I had not yet received them. If those are disregarded than my design calculations were about 90% complete with a few more items that needed to be worked out. But the drawings, which is the point of contention, were only about 50% complete. And since I had bent over backwards and done a lot of the details myself his part in the matter was only about 30% complete. He still has my last set of mark ups and I suppose he could continue on with them but than there would be no conflict. The entire conflict is about him not being willing to do them in their entirety. At any rate you are right. I think we should just leave it at that. As soon as we start trying to define which portions were or were not complete than another whole can of worms gets opened and we really have a mess on our hands.

"demayeng" so far I have probably structured about 60% of my contracts where the architect has done my drafting. It has worked out for the benefit of both parties in most situations. It helped me keep my overhead low though in the early years I gave too much of my fee away. But I improved on that issue. I found 2 architects who I really trusted and basically gave me their drafters on loan and I had complete control and they learned to draft it in my style. I had a few jobs where I had the problem like you said of marking and remarking. But I solved that problem basically by requesting of each of these two companies that a certain person do my drafting every time that way I wasn't retraining every time. Both of these architects though I believe are the exception to the rule. They both have a healthy understanding and fear of structures. So honestly it worked out really good. I have had a few clients where it didn't work out and I learned to simply not give them that option. But for my main two clients it worked out good. But again I had complete control.

But I have to admit I shouldn't have structured my agreement with this new unknown architect this way. I think with the short turn around time on the project I lost my good sense a bit. I even have a drafter I use when keeping my plans in house and I should have sent him the work. At any rate it was a big mistake. My advice for anyone considering this arrangement is to work with them 2 or 3 times first and get a feel for their character before entering into this kind of agreement. I also think now is a particulary dangerous time because with the economy so bad here in Florida architects are agreeing to do some crazy things out of desperation.

A few ideas that I have got from people and would like to share with everyone here include the following ideas:

1) When sending the letter have a statement that reads that if we have not heard from you within a set amount of time than the contract is terminated. This way a non-response doesn't prolong the situation.

2) After getting the legal documents finished copy the owner and his insurance company and my insurance company.

3) If bid documents on the street are clearly my design and without the seal of another engineer report him to the Florida board of architecture for practicing engineering.

4) Get the legal stuff finished before notifying the owner and contractor. This way the beehive isn't kicked before the termination process is complete.

And sorry for not editing this post, I'm typing fast and will have to check back later. Needless to say I'll feel a lot better when this is over.





John Southard, M.S., P.E.

http://www.pdhlibrary.com/

 

[southard2]

Oh one more thing. In the past I've read that when jobs go bad like this your best off to stick it out and finish the job that way your not leaving someone to finish it for you. But in this case I don't see how I can proceed ethically since he refuses to draft the plans and incluse all the notes I want, etc.... The last set didn't even have all the beams sizes called out. It was ridculous and he argues its redundant because he some sizes called out elsewhere are architectural sheets of which of course I have know control. I guess my position is that I can represent myself as the engineer of record if I have no control over my design. This could get ugly but I'm hoping he will do what he said and move on and get his structural engineering from someone else.

John Southard, M.S., P.E.

http://www.pdhlibrary.com/

 

[Ron]

John...you might explain to him that the standard of care for Architects is different than that of engineers. They can get by with schematics and lack of detailing because most of them do and they won't criticize each other for those failings. Engineers aren't so lucky. We get slammed if we don't tell someone exactly how to do something and what to use when they do it.

You are obligated to follow the standard of care for engineers, not architects.

Also I think we are in somewhat the same area, so if you need a recommendation for a construction attorney, let me know.

Ron

 

[dik]

Getting him to sign and return is maybe difficult... it's best, but not often forthcoming...

Send him a letter confirming conversation with a registered signature return mail...

Dik

 

[southard2]

Ron,

I think I've got a good guy but I haven't spoken to him in person. He was recommended to me by an engineer I trust who works in Jacksonville. The guy recommended to me I guess has given a few presentations to the North Florida Structural Engineer's Association. Have you joined that yet? I'll be attending the conference up there on January 19th on the new ASCE 7-10 that is going into effect. Like I need another problem right now. Geeez.

It would be nice to have a backup recommendation though. I'm not sure we should post names online or not. But you can post your recommendation here or sent me an email. I'd appreciate it.

John Southard, M.S., P.E.

http://www.pdhlibrary.com/

 

[southard2]

I wanted to thank everyone that helped above. In the end things have ended about as well as I could have expected. I drafted a letter of "discontinuation of services". I had a lawyer review it and he added lots of good extra language.

It was design-build and I knew the contractor so I called him to let him know the situation. About 11 days later I was getting real nervous and I got a letter from the successor engineer. A day later I got the letter signed by the architect. He only struck out the line where I asked him to return all of the documents I had given him. I wanted my last set of mark ups back.

So at this point I've done just about everything I can do to avoid liability, etc... and I even got a little bit of money out of it which about half will probably go to the lawyer but I was very happy to be out of this situation.


I actually think the letter with the language was enough to push this guy toward actually hiring another engineer versus just wrapping things up himself and signing and sealing which I'm pretty sure he wanted to do. Otherwise his decisions would make no sense what so ever.

My advice to everyone would be to keep your drafting and control of plans in house unless you have already established a long relationship with your client. Even then you need to be careful. And in this bad economy (In Florida) watch out cause lots of people are desparate and going a little bit crazy.



John Southard, M.S., P.E.

http://www.pdhlibrary.com/

 

[ukengineer58]

if they were only Mark ups could you have submitted your own drawings, sealed and if he ignored them its his neck