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School Building Damage Analysis

The following is an excerpt from an Interface Consulting work product issued for use in litigation, arbitration, or mediation (dispute resolution). Names, dates, and other information has been modified for client confidentiality purposes.


Trinity TISD v. Landmark Litigation

I. Project Background

…the District contracted with Hammerly and Sons, PC (Hammerly), for architectural services associated with a new elementary school as well as for additions and renovations to existing facilities (the School). The District subsequently contracted with Landmark on…, to perform construction management services for the construction of the School. Landmark had the responsibility of coordinating the construction efforts of the various contractors that the District retained under individual contracts. The District hired the project superintendent, Mr. Henry Williams, who reported to Landmark.

…The completion certificate was not signed by Landmark or the District, as punch-list items continued to be addressed until 2004. Various contractors were able to complete most of the over 1300 punch-list items, and Landmark continued to work with the District well into 2004 in an effort to complete these items and close out the School project.

The District failed to obtain an inspection of the facility by the Texas Department of Licensing and Regulations (TDLR) prior to opening the School, but once the TDLR issued its report, multiple discrepancies were noted to exist. The District believed it was Landmark’s responsibility to correct the various deficiencies. Landmark believed....

 

II. The District's Complaint

The District has alleged that Landmark failed to properly manage construction of the School and has filed a lawsuit in an attempt to collect over $1.7 million from Landmark. The amount of alleged damages is as follows:

 

728-Graphic-Alleged-Damages.jpg

...

 

III. Discussion of Issues

III.A. Estimate to Correct Construction Currently in Place

The Taylor report provides a cost estimate to complete alleged repairs at the school. There is no explanation as to what repairs are to be made, where the repairs are located, or what type of repair was made, with the exception of the grade beam work explained later in this report. Additionally, there is no support for the pricing or a description of the suggested repairs included in this report. In fact....

III.A.1. Railings

...

III.A.2. Grade Beams

The second item listed is $45,600.00 for an alleged cosmetic repair of the grade beams supporting the buildings. The grade beams were constructed by Highland Concrete (Highland), a “friend” of the District. The grade beams were constructed according to the contract except for....

III.A.3. Cap Wall

...

III.A.4. Flash Windows

In his report, Taylor suggests that flashing was not installed at the heads and sills of the windows within the brick walls. It appears that Taylor did not perform a thorough investigation, as a simple evaluation of several windows displays the edge of the flashing material at the heads. Flashing below the sill would be hidden by the brick below the sill. Though the drawings, as shown below, do not indicate the flashing should be visible, in several locations it is visible. Taylor’s cost of $70,200 for installing flashing at 156 windows is unnecessary, inflated, and without substantiation.


Window Sill Detail

 

 

Additionally, there have been no reported window leaks....

III.A.5. Flash Doors

After examining several doors, it is evident that the edge of the flashing is shown at the heads of several doors within the coves surrounded by EIFS. This examination also showed….

III.A.6. Miscellaneous Electrical

...

III.A.7. Millwork

...

III.A.8. Drywall Repair

The buildings exhibit minor drywall cracking; however, for a five-year-old building, that is to be expected. There appears to be cracking as a result of building movement, and that is not the responsibility of....

III.A.9. Contingency

Taylor, in an effort to inflate the alleged damages, includes a 20% contingency of….A contingency is neither justified nor necessary and should be ignored. Additionally…. Any contingency, if appropriate, would automatically be reduced.

III.A.10. Supervision, General Conditions, Overhead and Profit

It is unreasonable to believe that the District will employ a general contractor to perform any corrective work that is remaining. If any of the identified work would be accomplished, the District would either self-perform it or retain a....

III.A.11. Architect and Engineering Fee

In another effort to inflate the alleged damages....

III.B. Conclusion of the Estimate to Correct Construction Currently in Place

In conclusion, any repair of hand railings is a District obligation because....

III.C. District’s Labor and Materials Expended to Make Repairs

The District has developed what it alleges are completion costs of the School that it is seeking to recover from Landmark. These costs include....

III.C.1. Concrete Corrective Work to Cure TDLR Violations

...

Regardless, Highland is responsible for its defective construction, not Landmark. Highland performed the work, regardless of whether Landmark authorized payment to Highland for its defective work. Landmark does not have control of or responsibility for construction means, methods, techniques, sequences, or procedures. Again, any correction of the work would have been....

III.C.2. Other TDLR Violations

The District performed work to correct TDLR violations concerning....

But for the District’s premature release of Highland, Landmark would have required Highland to correct its own discrepancy relative to....

III.C.3. Additional Construction Costs

III.C.3.a. Freezer Door Repair

III.C.3.b. Finish Out Stage Area

III.C.3.c. Teacher Workroom

III.C.3.d. Caulking

There is no question that the caulking was not completed by....

III.C.3.e. Corridor by the Office

III.C.3.f. Labor

III.C.4. Concrete Dumpster Pad

This item of work is one of the most interesting accusations against Landmark. The District demanded that the dumpster be cleaned at the loading dock outside the kitchen; and at the conclusion of the cleaning procedure, the dirty water from the cleaning was drained into the trench drain at the loading dock that empties into the retention pond outside the kitchen. The cleaning and draining procedure resulted in….

III.D. Conclusion of the District’s Labor and Materials Expended to Make Repairs

In conclusion, Highland is responsible for….Concerning the other TDLR violations; the District, the architect, and various listed contractors were responsible for these items with the exception of....

Finally, the cost of relocating the dumpster at a new concrete pad is the District’s obligation and has nothing to do with the School project. Including this item is a form of inflating the cost of repairing the Project.

 

Allocation of Costs

 

III.E. Return of Fees Paid to Landmark for Breach of Fiduciary Duty

The District claims that Landmark breached its contract with the District by failing to accomplish certain contractual responsibilities. It discusses several items within the contract for which it claims Landmark “did not make sure” and followed that with 1) the project was complete, and 2) the work was done according to the plans and specifications.  Article 2.3.15 of the contract specifically states that“[t]he Construction Manager (Landmark) shall not be responsible for a Contractor’s failure to carry out the Work in accordance with the respective Contract Documents.” Additionally, and of significant importance, is the fact that the District terminated the services of....

Regarding incomplete work, most of the major contractors returned to the site to correct their work. Those that failed to return to the site are responsible for compensating the District for their failures. For the contractors that are no longer in business, it is up to the District to absorb those costs as....

Therefore, there is insufficient cause to claim the project was in such a state of mismanagement that the complete construction management fee paid to Landmark must be returned. If the District believes that Landmark did not complete the contract to its satisfaction, then....

 

IV. Signature

...

 

V. Exhibits

...