Withholding Final Payment To Water slide repair Contractor - Poor Quality Work

Background:
I'm the Chair of our HOA's pool committee and not a Board member. Th Board hired a pool repair contractor to repair and refinish/paint our pool's commercial grade fiberglass water slide. He subcontracted the fiberglass repair and painting. The first weekend after the slide was reinstalled, the new paint started peeling off in several areas of the inside sliding surface. The pool repair contractor had the fiberglass sub contractor come out and he sanded down the flaked paint areas and the entire length of the slide. He then applied a second coat of paint. This was about three weeks ago. The new paint is now flaking just as badly as the first coat. We believe the contractor did not use the appropriate paint designed for water slides. He used an acrylic marine paint used on fiberglass boat hulls. Our management company recommended the contractor. We have come to find out he has never resurfaced/painted a water slide.

Since the repainted outside surface of the slide is fine, the HOA Board has paid half of the bill, but does not want to pay the other half until we are certain the slide paint will not flake off. We have had several meetings with the contractor and have told him that he will not be paid until the slide is repainted and he agrees to extend the warranty through the end of the 2012 pool season. The contractor said he would sand and repaint only the chipping areas. He refused to extend the warranty.

The contractor is not willing to negotiate further and has said that either take it or leave it. He has threatened to sue for payment if we don't pay him after he fixes the flaking areas. As I said, I am not on the Board and do not have a vote on the matter, but I wouldn't let the guy back on the property, take the remaining $6,000 and hire an actual water slide renovation company to fix and resurface the entire interior of the slide. The Board is worried about the expense of defending a suit. But I can't imagine paying for something that does not even function for waht it was installed to do, a smooth clean slide surface.

Does anyone have any advice or common experiences? Thanks in advance for your reply.

I'm sorry, but that's not what a mechanic's lien is, but rather the exact opposite.

A mechanics' lien is to designed to provide protection for contractors, subcontractors, material suppliers, etc engaged in the repair, construction or improvement of real and/or personal property.

Further reading:
http://www.saclaw.lib.ca.us/pages/mechanics-lien.aspx

Our board withheld partial payments on a couple of major projects until the work was satisfactorily completed. They didn't threaten to lien us or sue.

But you may need to read the contract with this vendor to see what the agreement actually is between him and the HOA. Your board also may need advice from your HOA attorney.

Thanks for the reply JonD1.

A little background on myself. I have served on the HOA boards in all of my subdivisions (25+ years) and had been a two term (4 years)city councilman in a suburb of St. Louis County with 38,00 residents. I have lived in this current neighborhood since building new in 2003 and was the board prez for five years starting when the developer asked me to put together the first transitional board. With all of these years of government service (and that's exactly what an HOA is, the most personal type of government), I have just about seen it all. Our neighborhood (250 single family homes)is lucky in that we have many residents willing to participate and occupy one of the five board positions. It was for this reason that I stepped aside two years ago in order to allow some fresh blood on the board (always loved the concept of term limits, though not required per our docs). I chose to stay active and was allowed to participate as the pool committee chair.

OK, now you know all about my background, to the point at hand. You are thinking along the same lines I have all along. This situation has really _____ed me off. The current board seems to be scared of their own shadow and appears to be covering their backsides instead of standing up to contractor who has obviously taken them. All five are successful professionals, doctors, a lawyer, a corporate CEO, etc. In other words, all Chiefs and no Indians (the attorney is an arbitrator, so is committed to risk reduction and thus believes that they came out OK by not having to pay the total $12K bill. She doesn't want to risk upsetting the contractor and possibly having to pay the other $6K. The others seem to think that because she is an attorney, that she would know best and have gone along with it.

My thought all along has been that they should not just be going after the contractor alone, but to also call the property manager onto the carpet. It was she who recommended this complete slide repair novice in the first place. Yes, the PM is being paid to provide the service of recommending the appropriate contractors to perform particular tasks, but it is still the responsibility of the board to research and gain some measure of understanding of the nature of the work to be performed so they can be assured the job is being or has been done correctly. I treated all HOA contracted work as if I were hiring the company to do work on my own home and made sure I researched the proper procedures and methods of the particular scope of work. I guarantee you that if the board members had personally hired this guy to work on their home and this was the result, they would not hesitate to bring action against him to recover all moneys previously paid. They just don't get that their job is to provide services to the residents and to protect the funds that these homeowners have worked so hard for.

I am still holding a grudge against the board for not allowing me, as the pool chair, to be involved or at least kept informed during the evaluation of contractors to perform the work. The board knows that I have an engineering background and that I am a "jack of all trades" with the ability to fix just about anything. Many times I have been asked to and volunteered to fix something that, in the beginning, I had no idea how to. I researched the proper methods and succeeded in repairing the failure. I certainly wouldn't have taken on this slide rehab job, but at the least, I would have found out the right and wrong way of doing it. My first reaction to any repairs or improvement projects the HOA board has taken under consideration has been to ask "can we do this ourselves?" If I was not familiar with hoe to perform the work, I researched it and if I was uncertain I could do it or would take too much time, I would recommend hiring it out. But while finding out if I could or wanted to do the work, I learned how the work should be done, thus allowing me to be certain the work is done correctly.

OK, off of my soapbox. Jon, the board has since come to some semblance of reason and have asked me to try and find a solution to their predicament. My one and only term in accepting this, was that I will be solely responsible for contacting, working with and recommending the new contractor to repair the previously botched work. I insisted that no one from the board (the many Chiefs) is to interfere or to contact any of the contractors I was interviewing. I have told these potential contractors that they are to let me know if a board member or the PM contacts them and that they are to refer them to me for answers to any questions. To date, the board has honored this. I'm sure their motivation has to do with the fact that if they broke our agreement, I would tear each of them a new one in regards to their slide repair screw up at the annual meeting in November.

Thanks for taking the time to read my little narrative, I'll keep you posted on how things end up.

Dan

I asked exactly that question! I also asked how many patients survived.

Admittedly, this doesn't help with the present situation, but I think this episode points out the importance of have a detailed statement of work with specific, measurable, performance objectives that must be met by the contractor before final payment is made. For example, if the materials to be used for the repair and coating of the slide surfaces had been specified, or specific performance measurements regarding the performance and durability of the coating materials had been specified, and had those performance requirements not been met, the case for withholding payment would be stronger since it would be easier to prove the contractor failed to meet the conditions of the contract. I realize that is difficult because none of us are experts, and the reason a pool repair contractor was hired is because he is supposed to be an expert and should know what materials should be used. Perhaps he failed by hiring a subcontractor without providing the sub with a detailed SOW regarding the work to be done and the materials to be used. It should be apparent, though, that the inner surface of a water slide must withstand the continus abrasion from swimsuits soaked in chlorinated water, which is not the same as the exterior surface of a boat moving through plain or salt water. Salt and chlorine are two different chemicals and can react differently with the chemicals used in the paints. Hence, paint which may may be durable in one situation cannot be relied upon to be equally durable in the other.

Dan:

I am just curious what is the height of this slide?

How long? Ballpark?

http://www.slideresurfacing.com/static.asp?path=2890

Looks to me like this wheel has been already invented.

You don't seem to be breaking new and untested ground on this one.

Just wondering if either of your contractors bothered to look into this at all.

Have you priced a new slide? Just wondering how that would compare with the $20,000 repair estimate.

Lots of information about refinishingn slides on the Web.

We have noticed that several people have several hundred postings and some in the thousands. Wow. It is always interesting that the people who really contribute to the world, inventors, researchers, engineers, et never have the need to boast about themselves on sites such as this. There was comment that the ones who don't step forward and talk alot are the ones that should be on boards - the irony of that is astounding. I never ceases to amaze me that the people who threaten to get what they want and don't share info can never see their own stereo type and the faults within. You also can't make assumptions or think everything you read is the truth. The fact is you know nothing about the motives of this board or the management group. If you can't seem to get along with others in life and are always feeling excluded, THEN LOOK AT YOUR OWN SELF AND YOUR OWN BEHAVIOR. You get what you give. People don't respond well to being insulted and whining around about not being included. Make your contribution and join the team. I understand forums like this are good for the most part but this conversation has not been helpful to anyone. Maybe that is the value but certainly no real info or advice that makes any sense has been put forth, only assumptions.

All, I don't think this is a fair judgment to hear a single person story and start judging people and their actions. All the information posted here is not something that Dan knew before hand, rather, they were found as the contractor started to deliver, and the board expressed its conserns to the contractor as they came up, including Dan.

Dan,
As you were asked to attend the board meeting in order to exchange our thoughts on the topic, the board is well aware of the situation and does everything legally possible to ensure our community is well taken care of and is not in hands of those who create chaos and manipulation of facts for their own personal agenda.

There were many major problems during the time you were on the board as well and I’ll be happy to talk to you about every single one of them in person. Sometimes number of years of service does not matter, what matter is what we learn from those years and how to change our approach and attitude toward solving problems as they come up. Sometimes communication is the key rather than taking everything in your own hand. Sometimes thinking before acting may solve many problems, sometimes staying out rather than getting too deep involved may be the key to solve the problem. You mention you are not on the board, but I'm not sure if anything passes by in our neighborhood before you know all about it. Do you want me to keep going? I have a lot to share.