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In my last two columns, I’ve gone to unusually length in describing my views of the design-preparation and presentation processes. This time, the subjects are more compact but, in practical terms, no less significant and vital: permits and contracts.

We left the discussion last time at the point where I’ve shown my clients the design package and it’s time for them to decide what to do. In most cases, they choose to build – the usual outcome for me because of the way I pre-qualified my clients and communicate clearly with them at every step of the way.

In general, if you’ve done the right things to this point and the project reflects an informed knowledge of what is involved in

actually building the watershape, the permit and contract processes will tend to flow smoothly. If you haven’t, however, prepare yourself for a project that might become mired in red tape, delays and monumental frustration.


I covered my basic approach to the permitting process back in July 2006 (“Hitting the Green Light,” page 28) in the context of a project my partner Kevin Fleming and I tackled on the New Jersey shore. I won’t repeat what was a detailed discussion of the hands-on approach we take and how we don’t rely on permit runners to represent us with city and/or county regulators.

What wasn’t stressed there and bears mentioning here, however, is that the permit process is directly tied into what happens when the time comes for inspections.

I know many of you absolutely dread the permitting process and are even more bothered by inspectors and the inspection process. While this anxiety may be common, it’s nonetheless misguided. Yes, the nitpicking requirements applied in some areas seem unnecessary and, yes, some inspectors can be officious and overbearing, but fighting bureaucracies has never seemed to me like a sensible investment of time or energy.

Indeed, it behooves us as professionals to accept permitting as part of the process and do everything we can to pass through it smoothly. I also think we need to inform our clients about the nature of these requirements and let them know how long compliance with the rules is likely to take.

Depending on the jurisdiction (and sometimes on site conditions), you’ll run into the need for a variety of inspections. For any given lot in California, for example, you might need a grading inspection and then, on every project, a combined inspection (generically known as a “pre-gunite inspection”) of the plumbing, steel and bonding. Next comes an inspection after application of gunite, shotcrete or poured-in-place concrete.

There are also inspections of associated structures, including decks (structural and/or bonding), barbecues and outdoor kitchen. Given the way the rules vary from place to place, I’ll stick to generalities here and say only that it is the contractor’s responsibility to know the local rules and abide by them.

No matter where I work, I’m always prepared – and I’ve always found that by being open and showing inspectors everything we’re doing on site, they might raise questions but the process never bogs down. As I see it, problems arise only when you try to slide sloppy or incomplete plans through the process and/or don’t build according to plan. If you are open, thorough and communicative – and you know the ropes – you’ll seldom encounter serious problems.


Building departments are not inherently bad institutions, and I’m always aware that even when problems arise with plans or inspections (and despite the fact that these experiences can be immensely frustrating), the people I’m working with are simply doing their jobs.

I’ve heard many people refer to them in all sorts of unflattering ways, but my thought has always been that, as expert contractors, we should have no problems if we’re doing things right. In that context, building officials from plan checkers to inspectors are nothing more than additional sets of eyes making sure we’re building structures that will last: I want and welcome their support.

In California, the law says that the contractor is the expert on site. As the expert, if you haven’t made sure the structure is right for the soil conditions, you’re likely to run into problems with a failed shell, deck or wall — and it’s never the fault of the building department. By the same token, if you’re doing substandard work and an inspector catches you at an intermediate stage of the project, you should be grateful: In these cases, the regulator may just have saved your hide!

I approach my contracts with the same sort of open-mindedness. In fact, I see the way I structure mine as another reflection of quality and the clear, open ways I communicate with my clients.

The way I look at it, if we reach the point where a contract is to be signed and my clients are surprised by anything they see, I simply haven’t done my job of letting them know what’s going on and of establishing clear sets of expectations. In fact, if I’m on target in these respects, most of what they’ll see in a contract has already been covered in the presentation and the document itself is little more than a formality expressing agreed-upon project parameters.

This is why I’m a firm believer in simple contracts. Mine start with boilerplate developed by the American Institute of Architects, but that’s just one of numerous available resources that are appropriate for watershaping. They all specify your name, your company’s name and the clients’ names; the address of the job site; your contractor’s license number; and exactly what you are to do in the construction phase within a given pricing structure and schedule.

That’s all simple stuff, and the only way to get tripped up is if you aren’t prepared or have been less than effective in communicating with your clients.


Of course, no boilerplate contract does the whole job, and there are always areas that are open to discussion. This is where conflicts can arise and where you therefore need to be particularly careful to get the appropriate words into place.

The biggest example of this need has to do with surprises that might arise, particularly those related to excavation. Even with professionally generated soils reports, nobody approaching a site has X-ray vision, so the contract needs to describe what it means if, during excavation, you hit a pocket of incompetent soil or run up against a massive boulder.

Contract Pratfalls

When it comes to contracts, I’ve known more than a few watershapers who include disclaimers in their contracts declaring, for example, that they are not responsible for earth movement.

What an absurd idea! No matter where you may be, all earth moves, and it’s up to us as project experts to make certain our plans and, more important, the structures we build have accommodated that fundamental fact.

This is why those who work directly with homeowners need to be knowledgeable: All clients at all levels need to be informed about basic realities, including earth movement as well as the fact that all concrete cracks and that all colored plasters will mottle. A salesperson without suitable knowledge will tend to gloss over these details because such disclosures run against the grain in the sales process.

To me, lack of complete candor in these matters is unacceptable: I know these gaps can lead to conflicts even long after work on site has been completed. My point: If your clients aren’t informed about these issues and you run into a roadblock with inspectors or post-installation issues with clients, it’s really your problem, not the homeowners’!

— D.T.

Neither occurrence is anyone’s fault, but real trouble will arise if you haven’t included language in your contract stating that unknown conditions can rise in the course of a project and will effect the cost of building the watershape.

Beyond that, there’s room for misunderstanding when contracts make general statements that aren’t based on specific numbers. To be fair to my clients, my contracts include breakdowns of all elements based on linear footage and square footage. If the project includes X square feet of a particular type of stone at X dollars per square foot, then that item is called out – and the same holds true for decking, the size of the pool, the edge treatments, the equipment set and more.

I even call out the work required to install stone, specifying whether the work includes grading, footings, stonesetting or any part of those activities. I’ll even specify the sub-base and indicate whether it is to include steel, wire or steel and wire and if it is to be blocked up on “chairs” (also known as dobies) – not to mention the depth of any footings. In my book, these are all significant details that must be called out.

Why so much detail? Well, if you don’t have that information spelled out, there is no reliable basis for accommodating change orders – and as all of us who work on custom projects know, there will almost always be changes along the way.

If you have 300 square feet of stone called out and the homeowner wants to get rid of 100 square feet of it, you can easily revisit the original breakdown and do the math. This way, there are no foundations for disputes: Everything’s there in black and white, complete with signatures, as a set of constants established at the outset. In effect, neither you nor the homeowner can diverge from those parameters.


Although it really should go without saying (but unfortunately doesn’t), the key to contracts is that they hold you to build exactly what has been delineated in the contract at the same time they bind your clients to certain terms. In that sense, the contract protects your interests as well as those of your clients.

At the same time, I’m aware that, in the real world, a contract is only as good as a client’s handshake: If I don’t feel confidence in the clients or have a comfort level that tells me they’ll meet their commitments, I would be crazy to proceed and have found myself, even at this stage, walking away from what I see as disasters waiting to happen.

I recognize that, on the level at which I operate, I have the opportunity to pick and choose among clients, most of whom come to me on the basis of strong referrals. If you’re in a volume-oriented business, the standards for client quality are obviously different and you’re really playing the odds: Sometimes things will work; sometimes they won’t.

From my perspective as a low-volume, high-end operator, nothing about contracts needs to be terribly fancy. The documentation usually runs to about seven pages with three primary sections: a standard contract that covers boilerplate-type information; a section that lists all of the abovementioned breakdowns; and a section that describes the payment schedule.

This last of these parts is extremely important – and for obvious reasons.

There are all manner of ways to structure the payment schedule, but the key is to be sure everything is clearly defined, no matter how you choose to do it. In my case, I base the schedule on percentages of work completed and set things up so that I stay even through most of the project and make the margin in the last two payments. This makes sense to me because of the way I’ve organized my business, but there are many ways of approaching the issue.

Taking a long view of my projects’ life spans, I’ve always seen this stage between the presentation and actual construction as legalistic break in the action. Once these needs have been accommodated, it’s on to construction – a subject we’ll begin approaching in my next column.

David Tisherman is the principal in two design/construction firms: David Tisherman’s Visuals of Manhattan Beach, Calif., and Liquid Design of Cherry Hill, N.J. He can be reached at [email protected]. He is also an instructor for Artistic Resources & Training (ART); for information on ART’s classes, visit

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