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Are these normal issues with contractor's agreement?
I'm in Florida working on getting post-hurricane repairs made to my house.
Replacement of the roof, drywall replacement in several rooms and full house carpet replacement. I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company. I realize many of you aren't attornies but am hoping some have had experience with this sort of issue and see what you think about some points on the agreement - under each I'll include any questions concerns about the point. If you see something, by all means speak up. By the way, sorry for the all caps, but I did this by OCR off my scanner. It would take forever to type it all: 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT OF THE AMOUNT DUE PLUS INTEREST FROM THE DATE THEREOF AT A RATE OF ONE AND ONE-HALF (1 1/2) PERCENT PER MONTH (18 PER ANNUM) OR SUCH MAXIMUM AMOUNT ALLOWED BY LAW, AND IF PLACED IN THE HANDS OF AN ATTORNEY FOR COLLECTION. ALL ALLOWABLE ATTORNEY'S FEES AND LEGAL AND FILING FEES SHALL BE PAID BY THE CUSTOMER. I wonder about coordination of money from the Insurance company vs when the contractor is going to be doing the work. Do they normally not begin work until the insurance company has agreed to the costs? 6. COMPANY RESERVES THE RIGHT TO REVOKE THIS PROPOSAL 90 DAYS FROM DATE ACCEPTED. AFTER 90 DAYS, COMPANY RESERVES THE RIGHT TO REVISE ITS PRICE IN ACCORDANCE WITH COSTS IN EFFECT AT THE TIME. Is what they're saying is that they can back out any time up to 90 days or that it's only good for 90 days? 7. THE COMPANY SHALL NOT BE LIABLE FOR FAILURE OF PERFORMANCE DUE TO LABOR CONTROVERSIES, STRIKES, FIRES, WEATHER, INABILITY TO OBTAIN MATERIALS FROM USUAL SOURCES, OR ANY OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE COMPANY, WHETHER OF A SIMILAR OR DISSIMILAR NATURE. I wonder what constitutes a "labor controversy"? 11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES THE COMPANY MIGHT REASONABLY ANTIC- IPATE IN THE EVENT OF A BREACH OF THIS AGREEMENT BY CUSTOMER(S) WILL BE DIFFICULT TO ASCERTAIN AND THE AMOUNT STIPULATED HEREIN IS A REASONABLE ESTIMATE OF SUCH DAMAGES. What if they keep stalling on work and I get sick of waiting for them and want to look for someone else? 12. PAYMENT SCHEDULE: DEDUCTIBLE DUE UPON INSURANCE PROVIDER APPROVAL. FIFTY PERCENT (50) OF THE TOTAL AGREEMENT AMOUNT DUE UPON DATE OF DELIVERY OF APPLICABLE MATERIALS. BALANCE DUE UPON COMPLETION OF WORK. ALL PAYMENTS MUST BE MADE TO THE COMPANY. ONLY PAYMENTS MADE TO AND RECEIVED BY THE COMPANY WILL BE CONSIDERED TO SATISFY THE PAYMENT OF THIS AGREEMENT. PAYMENT SCHEDULE SHALL NOT BE AMENDED WITHOUT THE PRIOR WRITTEN APPROVAL OF THE COMPANY. Is this normal? Btw, it's not quite what the contractor's rep said when he came to do a preliminary look-see. He said on the roof that they get 1/3 when they get the materials, 1/3 when they "start driving nails" and 1/3 when I was happy with the job. 15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF. When could this be an issue? 17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS. They seem to be referring largely to decks here which isn't an issue in my case, but what is a "nail pop"? Any way it could apply to a roofing job? 19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH. Any problems here? 20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT. I'm fuzzy on what's considered "the total agreement amount". 23. FLORIDA LAW APPLIES TO THIS AGREEMENT. ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT SHALL BE FILED EXCLUSIVELY WITH THE COUNTY OR CIRCUIT COURT OF ORANGE COUNTY, FL. THE RIGHT TO JURY TRIAL IS WAIVED. The right to a jury trial is waived? Could this come back to bite me? I wonder under what circumstances it could become an issue. 24. THIS AGREEMENT IS COMPOSED OF THIS BACK PAGE, THE FRONT SIDE OF THE AGREEMENT AND A SEPARATE PAGE WHICH CONTAINS A MANDATORY FLORIDA DISCLOSURE REGRADING CONSTRUCTION LIEN LAW. AND ALL MATTERS INCORPORATED HEREIN BY REFERENCE AND SHALL BE CONSIDERED THE ENTIRE AGREEMENT BY THE PARTIES. Any thoughts? What I'm looking for is if you feel these seem like normal, reasonable provisions or if you see anything that's questionable. Thanks for all shared wisdom. |
"Doc" wrote Any thoughts? I'll be brief, run, don't walk away from this company. There are many problems with this contract, and a lot of them you already picked up on by questioning certain areas. |
20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT. To me, this alone is enough to say "No Thanks". As I read it, they are saying they are only liable for any damages they cause, to the amount that you have agreed to pay them for their work. So if they set fire to your house, and youve agreed to a 10k contract, well, they are liable for 10k in dmaages, nothign more. That is how i read it , anyway. |
"Doc" wrote in message nk.net... I'm in Florida working on getting post-hurricane repairs made to my house. Replacement of the roof, drywall replacement in several rooms and full house carpet replacement. I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company. I realize many of you aren't attornies but am hoping some have had experience with this sort of issue and see what you think about some points on the agreement - under each I'll include any questions concerns about the point. If you see something, by all means speak up. By the way, sorry for the all caps, but I did this by OCR off my scanner. It would take forever to type it all: 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT OF THE AMOUNT DUE PLUS INTEREST FROM THE DATE THEREOF AT A RATE OF ONE AND ONE-HALF (1 1/2) PERCENT PER MONTH (18 PER ANNUM) OR SUCH MAXIMUM AMOUNT ALLOWED BY LAW, AND IF PLACED IN THE HANDS OF AN ATTORNEY FOR COLLECTION. ALL ALLOWABLE ATTORNEY'S FEES AND LEGAL AND FILING FEES SHALL BE PAID BY THE CUSTOMER. I wonder about coordination of money from the Insurance company vs when the contractor is going to be doing the work. Do they normally not begin work until the insurance company has agreed to the costs? thats variable...beware though florida is not famous for great contractors. Some exist no doubt but thats the main issue.. the contractor personally.. not the paper work. 6. COMPANY RESERVES THE RIGHT TO REVOKE THIS PROPOSAL 90 DAYS FROM DATE ACCEPTED. AFTER 90 DAYS, COMPANY RESERVES THE RIGHT TO REVISE ITS PRICE IN ACCORDANCE WITH COSTS IN EFFECT AT THE TIME. a red flag... valid if the work is never started...but once started a way to screw to the wall..Ive never seen such a clause before...that takes guts. So far this contractor has lost big points with me on this clause alone. its a set up as i see it. Is what they're saying is that they can back out any time up to 90 days or that it's only good for 90 days? Its weasly in many aspects.. unclear is always bad..especially when it allows for escallation explicitly. 7. THE COMPANY SHALL NOT BE LIABLE FOR FAILURE OF PERFORMANCE DUE TO LABOR CONTROVERSIES, STRIKES, FIRES, WEATHER, INABILITY TO OBTAIN MATERIALS FROM USUAL SOURCES, OR ANY OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE COMPANY, WHETHER OF A SIMILAR OR DISSIMILAR NATURE. Reasonable by itself...combined with the other clauses probably a ticking time bomb. I doubt if the contractor has a solid local reputation.. if thats the case, this would be one to avoid. I wonder what constitutes a "labor controversy"? "Joey tells Billy to phuck off" 'so we were short crew, and yer job had to wait'.... vague legal wording in a legal document is a boquet of red flags..thats done deliberately by someone who wants access to your money. 11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES THE COMPANY MIGHT REASONABLY ANTIC- IPATE IN THE EVENT OF A BREACH OF THIS AGREEMENT BY CUSTOMER(S) WILL BE DIFFICULT TO ASCERTAIN AND THE AMOUNT STIPULATED HEREIN IS A REASONABLE ESTIMATE OF SUCH DAMAGES. What if they keep stalling on work and I get sick of waiting for them and want to look for someone else? Thats not even reasonable..lack of time frame makes it almost a total fraud. I know of no decent contractor who would employ these tactics, especially in combination. If you want to jerk this guys chain ask for a list of satisfied customers that you can go *visit, look at the work and talk to... watch him go balistic with outrage...a way to discourage further inquiry. 12. PAYMENT SCHEDULE: DEDUCTIBLE DUE UPON INSURANCE PROVIDER APPROVAL. FIFTY PERCENT (50) OF THE TOTAL AGREEMENT AMOUNT DUE UPON DATE OF DELIVERY OF APPLICABLE MATERIALS. BALANCE DUE UPON COMPLETION OF WORK. ALL PAYMENTS MUST BE MADE TO THE COMPANY. ONLY PAYMENTS MADE TO AND RECEIVED BY THE COMPANY WILL BE CONSIDERED TO SATISFY THE PAYMENT OF THIS AGREEMENT. PAYMENT SCHEDULE SHALL NOT BE AMENDED WITHOUT THE PRIOR WRITTEN APPROVAL OF THE COMPANY. Is this normal? Btw, it's not quite what the contractor's rep said when he came to do a preliminary look-see. He said on the roof that they get 1/3 when they get the materials, 1/3 when they "start driving nails" and 1/3 when I was happy with the job. Another set of red flags .. 15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF. When could this be an issue? its weasly. weasly is not what one is looking for in a contractor..but thats probably close to the florida standard. You might do better running an ad for escaped felons. 17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS. Reasonable sounding but with traps.. ALL decking deflects.. how much is another issue. Not stated its an obvious trap.. after they get the roof torn off they will find issues and 'deflection' to fix it will cost another 5 or 10k etc. If you dont go for that they pull off the job and collect their 25% plus, and keep all other amounts you paid. Go talk to a national chain has a reputation to protect..see what they quote you. They seem to be referring largely to decks here which isn't an issue in my case, but what is a "nail pop"? Any way it could apply to a roofing job? anything can be made to apply...if you dont like it you can hire an attorney for 5 or 10k...they know thats not viable for you..so you will pay a bunch of 2 to 5k extra's until you finally go nutz. 19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH. Any problems here? By itself, no problems.. a simple cya clause. except for the first few lines regarding owner liability for damages, say one of their men trips on your sidewalk.. that can be arranged... this contractor says you are liable. Decent outfits dont use contracts in this way. 20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT. Thats legitimate.. other legitimate clauses are often used as smoke to distract from the bogus ones. I'm fuzzy on what's considered "the total agreement amount". Since anyone signing this paper agrees to whatever escallation etc the contractor wants.. it is vague..deliberately. Makes it so no decent attorney would touch the case...so you pay whatever or they put a lien on your house. 23. FLORIDA LAW APPLIES TO THIS AGREEMENT. ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT SHALL BE FILED EXCLUSIVELY WITH THE COUNTY OR CIRCUIT COURT OF ORANGE COUNTY, FL. THE RIGHT TO JURY TRIAL IS WAIVED. The right to a jury trial is waived? Could this come back to bite me? Oh ya... I wonder under what circumstances it could become an issue. Dealing with these guys would be the negative circumstance. 24. THIS AGREEMENT IS COMPOSED OF THIS BACK PAGE, THE FRONT SIDE OF THE AGREEMENT AND A SEPARATE PAGE WHICH CONTAINS A MANDATORY FLORIDA DISCLOSURE REGRADING CONSTRUCTION LIEN LAW. AND ALL MATTERS INCORPORATED HEREIN BY REFERENCE AND SHALL BE CONSIDERED THE ENTIRE AGREEMENT BY THE PARTIES. Any thoughts? A nasty, bogus, tricky contract that nails you squarely to the wall if you sign it and leaves you wide open for a rip off. I wouldnt deal with this guy myself. Here is the deal... on a job like you have, an honest gross is in the 30 to 50% range...net way less than half that.. the job is not real big in the first place, lets say 30k...so the guy is looking at a legitimate profit of 5 to 7k. He can double or triple the net profit with just a little fudging. His contract sets that up for him. What I'm looking for is if you feel these seem like normal, reasonable provisions or if you see anything that's questionable. Thanks for all shared wisdom. You will find the decent guys are backlogged for years in florida..those that can 'do the job now'... then present this kind of contract are in business to rip off as much as possible, you will be lucky to get the work done, let alone well. that is not the interest of these sorts of people. imo Phil Scott |
Don't be a fool. Don't sign the contract.
The American Institute of Architects (I think that's their name) has a standard language contract form for large projects like yours. It covers just about all of the key issues, and isn't a one-sided ripoff contract like the one presented to you by the general contractor. If you do a google search, you can probably find it online, or find out where you can get it. I think there is a modest cost for the conract form, but it's worth it. "Doc" wrote in message nk.net... I'm in Florida working on getting post-hurricane repairs made to my house. Replacement of the roof, drywall replacement in several rooms and full house carpet replacement. I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company. I realize many of you aren't attornies but am hoping some have had experience with this sort of issue and see what you think about some points on the agreement - under each I'll include any questions concerns about the point. If you see something, by all means speak up. By the way, sorry for the all caps, but I did this by OCR off my scanner. It would take forever to type it all: 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT OF THE AMOUNT DUE PLUS INTEREST FROM THE DATE THEREOF AT A RATE OF ONE AND ONE-HALF (1 1/2) PERCENT PER MONTH (18 PER ANNUM) OR SUCH MAXIMUM AMOUNT ALLOWED BY LAW, AND IF PLACED IN THE HANDS OF AN ATTORNEY FOR COLLECTION. ALL ALLOWABLE ATTORNEY'S FEES AND LEGAL AND FILING FEES SHALL BE PAID BY THE CUSTOMER. I wonder about coordination of money from the Insurance company vs when the contractor is going to be doing the work. Do they normally not begin work until the insurance company has agreed to the costs? 6. COMPANY RESERVES THE RIGHT TO REVOKE THIS PROPOSAL 90 DAYS FROM DATE ACCEPTED. AFTER 90 DAYS, COMPANY RESERVES THE RIGHT TO REVISE ITS PRICE IN ACCORDANCE WITH COSTS IN EFFECT AT THE TIME. Is what they're saying is that they can back out any time up to 90 days or that it's only good for 90 days? 7. THE COMPANY SHALL NOT BE LIABLE FOR FAILURE OF PERFORMANCE DUE TO LABOR CONTROVERSIES, STRIKES, FIRES, WEATHER, INABILITY TO OBTAIN MATERIALS FROM USUAL SOURCES, OR ANY OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE COMPANY, WHETHER OF A SIMILAR OR DISSIMILAR NATURE. I wonder what constitutes a "labor controversy"? 11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES THE COMPANY MIGHT REASONABLY ANTIC- IPATE IN THE EVENT OF A BREACH OF THIS AGREEMENT BY CUSTOMER(S) WILL BE DIFFICULT TO ASCERTAIN AND THE AMOUNT STIPULATED HEREIN IS A REASONABLE ESTIMATE OF SUCH DAMAGES. What if they keep stalling on work and I get sick of waiting for them and want to look for someone else? 12. PAYMENT SCHEDULE: DEDUCTIBLE DUE UPON INSURANCE PROVIDER APPROVAL. FIFTY PERCENT (50) OF THE TOTAL AGREEMENT AMOUNT DUE UPON DATE OF DELIVERY OF APPLICABLE MATERIALS. BALANCE DUE UPON COMPLETION OF WORK. ALL PAYMENTS MUST BE MADE TO THE COMPANY. ONLY PAYMENTS MADE TO AND RECEIVED BY THE COMPANY WILL BE CONSIDERED TO SATISFY THE PAYMENT OF THIS AGREEMENT. PAYMENT SCHEDULE SHALL NOT BE AMENDED WITHOUT THE PRIOR WRITTEN APPROVAL OF THE COMPANY. Is this normal? Btw, it's not quite what the contractor's rep said when he came to do a preliminary look-see. He said on the roof that they get 1/3 when they get the materials, 1/3 when they "start driving nails" and 1/3 when I was happy with the job. 15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF. When could this be an issue? 17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS. They seem to be referring largely to decks here which isn't an issue in my case, but what is a "nail pop"? Any way it could apply to a roofing job? 19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH. Any problems here? 20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT. I'm fuzzy on what's considered "the total agreement amount". 23. FLORIDA LAW APPLIES TO THIS AGREEMENT. ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT SHALL BE FILED EXCLUSIVELY WITH THE COUNTY OR CIRCUIT COURT OF ORANGE COUNTY, FL. THE RIGHT TO JURY TRIAL IS WAIVED. The right to a jury trial is waived? Could this come back to bite me? I wonder under what circumstances it could become an issue. 24. THIS AGREEMENT IS COMPOSED OF THIS BACK PAGE, THE FRONT SIDE OF THE AGREEMENT AND A SEPARATE PAGE WHICH CONTAINS A MANDATORY FLORIDA DISCLOSURE REGRADING CONSTRUCTION LIEN LAW. AND ALL MATTERS INCORPORATED HEREIN BY REFERENCE AND SHALL BE CONSIDERED THE ENTIRE AGREEMENT BY THE PARTIES. Any thoughts? What I'm looking for is if you feel these seem like normal, reasonable provisions or if you see anything that's questionable. Thanks for all shared wisdom. |
"Doc" wrote in message n k.net... I'm in Florida working on getting post-hurricane repairs made to my house. Any thoughts? Find another contractor. One who can bid the job right. And reserve final payment untill you pass final inspection. |
Here are two links for buying AIA construction contract forms:
http://www.stevensness.com/store/bro...ry&category=53 http://www.thecontractorsgroup.com/aia-forms.htm "T-Jay" wrote in message ... Don't be a fool. Don't sign the contract. The American Institute of Architects (I think that's their name) has a standard language contract form for large projects like yours. It covers just about all of the key issues, and isn't a one-sided ripoff contract like the one presented to you by the general contractor. If you do a google search, you can probably find it online, or find out where you can get it. I think there is a modest cost for the conract form, but it's worth it. |
"Doc" wrote in message I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company. I realize many of you aren't attornies but am hoping some have had experience with this sort of issue and see what you think about some points on the agreement - In spite of the comments of others, more important than the language of the contract is the reputation of the contractor. Most of the clauses are standard language stuff from the Commercial Code. Read the back of most company purchase orders and you find this type of thing and in all my years in the business world, none have ever been enforced. You get the merchandise, you pay for it, everyone is happy. Problems? Discuss and resolve. You can take this to your lawyer and pay him hundreds, maybe thousands of dollars to negotiate a different set, or, you find another contractor. Check his reputation. Nothing is more important. |
"Edwin Pawlowski" wrote Most of the clauses are standard language stuff from the Commercial Code. Tell me you're kidding. There is nothing standard about the parts below. " 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT" This next one, would be worthwhile to forward to the State Attorney General. They think they're clever by putting the "not as a penalty", where as it is a penalty, and not allowed in any state. "11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION." Simply outrageous, put in to leave the owner holding the bag. "15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF." The customer is supposed to point out wood rot? That's an obligation by the construction crew, to notify the consumer of problems. Nail pops can show up after the new roof, because the nails weren't driven properly. This clause is a go-ahead to rip off the consumer. "17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS." This pretty much states no implied warranty what-so-ever. In other words, the consumer is SOL, and they do less than desirable workmanship. "19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH." What's the potential damage which can occur above agreement.....priceless. "20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT." |
I particularly like this, give up your constitutional rights.
"23. FLORIDA LAW APPLIES TO THIS AGREEMENT. ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT SHALL BE FILED EXCLUSIVELY WITH THE COUNTY OR CIRCUIT COURT OF ORANGE COUNTY, FL. THE RIGHT TO JURY TRIAL IS WAIVED." |
Edwin Pawlowski wrote:
"Doc" wrote in message I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company. I realize many of you aren't attornies but am hoping some have had experience with this sort of issue and see what you think about some points on the agreement - In spite of the comments of others, more important than the language of the contract is the reputation of the contractor. Most of the clauses are standard language stuff from the Commercial Code. Read the back of most company purchase orders and you find this type of thing and in all my years in the business world, none have ever been enforced. You get the merchandise, you pay for it, everyone is happy. Problems? Discuss and resolve. You can take this to your lawyer and pay him hundreds, maybe thousands of dollars to negotiate a different set, or, you find another contractor. Check his reputation. Nothing is more important. I have to disagree with you on this one. A reputation deals with the past, a contract with the future. The best contractor can run into problems. I don't think the guy in question is one of the best. Check with the BBB and state licensing bureau - I'm sure the guy has plenty of complaints, or take Phil's advice and ask for a list of satisfied clients that you can contact and inspect the jobs. The guy will disappear on you - guaranteed. Most of those clauses are close enough to normal to seem innocuous on first reading. But they aren't vague at all. They're specifically written to remove all responsibility and give the weasel, errrr, contractor, room to "maneuver". It's a scam contract, pure and simple. If the contractor didn't give you a tube of KY when he delivered the contract, he's no gentleman. R |
Doc writes:
I'm in Florida working on getting post-hurricane repairs made to my house. Replacement of the roof, drywall replacement in several rooms and full house carpet replacement. Contracts are for the benefit of the contractor, not you. You will never get anything enforced for your benefit from a contract like this. You enforce your side by not paying until the work is done, and done right. |
I didn't take the time to read all articles of this agreement. You
should have it checked out by a construction lawyer. It most probably will cost you to have it done. Suggestion: have the construction work done as an open bid competative project. Get at least 5 to 10 bids. That way you have your GC's working to give you the most reasonable price possible as well as giving you control of the workmanship. Examine their quotes. Get references. BBB check. And have them give you project references that you can physically check yourself. This is a trick I figured out myself. Put a prize and penalty clause in the contract: the GC is to get a 1% increase of the total bid quote for finishing for each week prior to established date of completion. And that the GC will forfeit 1% of the total bid quote for each week of delay beyond the established date of completion. Make sure there is also a clause stating that the GC has not declared bankruptcy within the last 3 yrs. And that neither has any member of his family done so as officer of his or any other similar businessed company. See to it that his company has not changed hands under similar circumstances. In 12 yrs of international construction contracting (about one every 3 weeks), I had only one GC that didn't meet his deadline. |
For what it's worth, the name of the company is ABC American Building
Contractors - Insurance Restoration Services, Inc. According to the field rep who I talked to, they're supposedly a national company. Anyone ever heard of / dealt with them? I originally heard of them when a guy came around going through the neighborhood with door hangers. |
"Doc" wrote in message I originally heard of them when a guy came around going through the neighborhood with door hangers. Right now, in Florida, every reputable contractor is busy as can be with hurricane damage. None have to go around and advertise with door hangars. I'd pass on them. |
Disaster Chasers, most likely.
Pick up teams of workers that float around after disasters. Charleston SC saw a lot of bad work after Hugo. I waited about 18 months to get my roof permanently repaired and my ceilings rebuilt. It was worth it. TB |
"Doc" wrote in message nk.net... They seem to be referring largely to decks here which isn't an issue in my case, but what is a "nail pop"? Any way it could apply to a roofing job? You can have nail pops on a roof. The nail head pops up through the shingle. In most cases they occur because a nail was missed when the roof was stripped. The other area for nail pops that no one has mentioned is drywall nail pops. It is possible to have nail pops in your drywall ceiling as a result of a roofing job. Nail pops that occur in a new drywall job are usually, but not always, the result of the nail not being properly set. Most drywall guys try to limit the recalls because a lot of consumers abuse the contractor by calling them out a year after the work to fix a few nail pops and then wanting a new paint job out of the repair. I agree with the others who responded. RUN, don't just walk away from this company. The poster who provided the links to the "standard" contracts gave you some good links. Colbyt |
wrote in message ups.com... Get at least 5 to 10 bids. That way you have your GC's working to give you the most reasonable price possible as well as giving you control of the workmanship. Not criticising your advice, but the OP is in Florida where there h s been a lot of hurricane damage. He's lucky to get two contractors to even look at the job let alone 5 or 10. Therein lies the problem. Lots of undesirables out to make a quick buck. Examine their quotes. Get references. This is the most important aspect of the job. If the guy is good, well established and has a good reputation you will have satisfactory completion. |
Checking the Florida Department of State website (
http://www.tinyurl.com/atwbg ) I see in their Articles of Incorporation that their business activity should be limited to "roofing, siding and gutters." Additionally, I do NOT find any listing for them as a licensed contractor on the DBPR website (what is their license #???) ( https://www.myfloridalicense.com/Default.asp ) The following document from myflorida.com gives some good tips (avoid door-to-door peddlers, etc.) http://www.myflorida.com/dbpr/dbpr/n...home_jan04.pdf Most importantly, the contract, by law, should have the contractor's license number on it and you should demand a "Certificate of Insurance" from the contractor's workman's comp and general liablity carrier. Note the carrier provides it to you directly upon the contractor's request to them. Are you still seeking repairs from the '04 storms? "Doc" wrote in message nk.net... For what it's worth, the name of the company is ABC American Building Contractors - Insurance Restoration Services, Inc. According to the field rep who I talked to, they're supposedly a national company. Anyone ever heard of / dealt with them? I originally heard of them when a guy came around going through the neighborhood with door hangers. |
"rj" wrote in message . .. Checking the Florida Department of State website ( http://www.tinyurl.com/atwbg ) I see in their Articles of Incorporation that their business activity should be limited to "roofing, siding and gutters." Hmm. I was under the impression that general contractors in Florida can do the whole house if they have a roofers license. In fact, the insurance company strongly urges getting a general contractor so they can handle it all - roof, carpet, drywall. These people supposedly are a general contractor. Additionally, I do NOT find any listing for them as a licensed contractor on the DBPR website (what is their license #???) CGC1507721 ( https://www.myfloridalicense.com/Default.asp ) The following document from myflorida.com gives some good tips (avoid door-to-door peddlers, etc.) http://www.myflorida.com/dbpr/dbpr/n...home_jan04.pdf Most importantly, the contract, by law, should have the contractor's license number on it and you should demand a "Certificate of Insurance" from the contractor's workman's comp and general liablity carrier. Note the carrier provides it to you directly upon the contractor's request to them. Are you still seeking repairs from the '04 storms? Yes. By the way, for anyone reading this, I appreciate all the input. |
"Colbyt" wrote in message news:eoKHe.213051$_o.134561@attbi_s71... The poster who provided the links to the "standard" contracts gave you some good links. 10-4 thanks. |
"Ken" wrote in message ... "Edwin Pawlowski" wrote Most of the clauses are standard language stuff from the Commercial Code. Eds right BTW, but playing Devils Advocate in this post....read on.. Tell me you're kidding. There is nothing standard about the parts below. " 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT" 5% isnt high. There are contracts here that allow up to 25% of the total to be added. Your contractor isnt a bank, therefore, he wants his money too. This next one, would be worthwhile to forward to the State Attorney General. They think they're clever by putting the "not as a penalty", where as it is a penalty, and not allowed in any state. Its allowed here...sorry. Therefore, where do you get off saying its not allowed in any state? If I go buy $100,000 of parts and supplies on a contract that was signed by you, and you break the contract cause the weather changed, then damn right you are gonna pay something. "11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION." So..if the contractor goes out and buys materials that he will be charged at least 25% restocking fees on should you cancel, or worse yet, be unable to return, you just potentially screwed the hell out of him. Simply outrageous, put in to leave the owner holding the bag. "15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF." Nope. Thats called what your homeowners insurance is for. If the roofs already missing off your home, and the contractor starts work on it, and you get another storm, you are going to hold the contractor liable for anything that happens after he starts work? Wrong. The way I read it is simple: So long as his company took action to keep rain from entering, be it tarps, more plywood laid over etc....and you get another storm, and you get a leak that takes out your new $2000 widescreen, hes not gonna pay for it. Nor should he. The customer is supposed to point out wood rot? That's an obligation by the construction crew, to notify the consumer of problems. Nail pops can show up after the new roof, because the nails weren't driven properly. This clause is a go-ahead to rip off the consumer. "17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS." Here, that would be called a hidden damage clause. Meaning, that if during the course of the work, any hidden damage is found that was not quoted for repair due to it not being able to be seen, then the contractor stops and allows the customer to make up his mind as to what and how to proceed, after of course, IF needed requoting. This pretty much states no implied warranty what-so-ever. In other words, the consumer is SOL, and they do less than desirable workmanship. "19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH." Thats a lawyers way of inserting a mold protection clause. Mold is the new asbestoes of the new era, and you will find something like that on most every contractors forms, unless hes wanting to find that one person who would go sue for millions over something that was in his house before, and he just didnt have the circumstances prevaliant for it to manifest itself. What's the potential damage which can occur above agreement.....priceless. "20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT." And you checked to see if he had insurance right? What that clause is stating as I read it, as a contractor, that if you sue, and you already sound like one that would, HIS outlay of liability isnt going to be more than the amount you agreed to. His INSURANCE company on the other hand, isnt listed, and THATS what insurance is for. Now, on a more serious note. Its obvious you dont trust the company, and in general, we dont trust anyone. The reason why is sue happy people. Business isnt like it used to be. I still have customers I can take care of with a handshake and never have to worry about. Then, you get the new one that you just dont have a good feeling about, and after years of doing this, there has been more than one time I have told them that I just didnt think we could satisfy them, and that we declined the work...only to find out later that another company did the work and they have had nothing but problems since it was done. If you dont trust the contractor that has given the quote, just walk away and dont sign anything. By the same token, you may find a contractor that after talking to you, states that he cant do your work, or prices it out of your ballpark. It goes both ways. That said, suggest you look around, find someone that has a reputation and ability that you trust, and then look his contract over. Many of the clauses in the contract will never apply to you, however, witihout them, that ONE person that is looking for a reason to try to get rich quick will find a way to manipulate it to his advantage. Contracts used to be simple...you wanted work done, the contractor wanted to do the work and make a living. Now, due to litigation, most of it bull, since these days everyones sue happy, even when the works done perfect, contractors have HAD to take steps to protect themsleves. Seriously tho...find another one you can live with, and allow them to do the work. Express your concerns to the owner, or the job super, and make sure its done your way, but at the same time, make sure you allow them to do it their way too. Over all, it will work out for you and them...you want a roof fixed, and they want to fix it and make a profit doing so..its how business works. If you would see the insurance agreements in most grocery stores for example, you would never set foot in one again....yet, millions do, and few ever get hurt..except for the 1% of the legitimate injury cases that actually hit the courts.. Chances are, you could use that company and never have a problem...but bottom line, you dont trust them, find another, but keep in mind, they dont trust you either. |
"Carolina Breeze HVAC" Your comments are attempts to justify an utterly bogus contract. You are doing this by saying correctly that the contractor needs protection...while ignoring the obvous fact the contractor has deprived his customer of the customers legitimate rights. Not impressive. Phil Scott wrote in message ... "Ken" wrote in message ... "Edwin Pawlowski" wrote Most of the clauses are standard language stuff from the Commercial Code. Eds right BTW, but playing Devils Advocate in this post....read on.. Tell me you're kidding. There is nothing standard about the parts below. " 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT" 5% isnt high. There are contracts here that allow up to 25% of the total to be added. Your contractor isnt a bank, therefore, he wants his money too. This next one, would be worthwhile to forward to the State Attorney General. They think they're clever by putting the "not as a penalty", where as it is a penalty, and not allowed in any state. Its allowed here...sorry. Therefore, where do you get off saying its not allowed in any state? If I go buy $100,000 of parts and supplies on a contract that was signed by you, and you break the contract cause the weather changed, then damn right you are gonna pay something. "11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION." So..if the contractor goes out and buys materials that he will be charged at least 25% restocking fees on should you cancel, or worse yet, be unable to return, you just potentially screwed the hell out of him. Simply outrageous, put in to leave the owner holding the bag. "15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF." Nope. Thats called what your homeowners insurance is for. If the roofs already missing off your home, and the contractor starts work on it, and you get another storm, you are going to hold the contractor liable for anything that happens after he starts work? Wrong. The way I read it is simple: So long as his company took action to keep rain from entering, be it tarps, more plywood laid over etc....and you get another storm, and you get a leak that takes out your new $2000 widescreen, hes not gonna pay for it. Nor should he. The customer is supposed to point out wood rot? That's an obligation by the construction crew, to notify the consumer of problems. Nail pops can show up after the new roof, because the nails weren't driven properly. This clause is a go-ahead to rip off the consumer. "17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS." Here, that would be called a hidden damage clause. Meaning, that if during the course of the work, any hidden damage is found that was not quoted for repair due to it not being able to be seen, then the contractor stops and allows the customer to make up his mind as to what and how to proceed, after of course, IF needed requoting. This pretty much states no implied warranty what-so-ever. In other words, the consumer is SOL, and they do less than desirable workmanship. "19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH." Thats a lawyers way of inserting a mold protection clause. Mold is the new asbestoes of the new era, and you will find something like that on most every contractors forms, unless hes wanting to find that one person who would go sue for millions over something that was in his house before, and he just didnt have the circumstances prevaliant for it to manifest itself. What's the potential damage which can occur above agreement.....priceless. "20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT." And you checked to see if he had insurance right? What that clause is stating as I read it, as a contractor, that if you sue, and you already sound like one that would, HIS outlay of liability isnt going to be more than the amount you agreed to. His INSURANCE company on the other hand, isnt listed, and THATS what insurance is for. Now, on a more serious note. Its obvious you dont trust the company, and in general, we dont trust anyone. The reason why is sue happy people. Business isnt like it used to be. I still have customers I can take care of with a handshake and never have to worry about. Then, you get the new one that you just dont have a good feeling about, and after years of doing this, there has been more than one time I have told them that I just didnt think we could satisfy them, and that we declined the work...only to find out later that another company did the work and they have had nothing but problems since it was done. If you dont trust the contractor that has given the quote, just walk away and dont sign anything. By the same token, you may find a contractor that after talking to you, states that he cant do your work, or prices it out of your ballpark. It goes both ways. That said, suggest you look around, find someone that has a reputation and ability that you trust, and then look his contract over. Many of the clauses in the contract will never apply to you, however, witihout them, that ONE person that is looking for a reason to try to get rich quick will find a way to manipulate it to his advantage. Contracts used to be simple...you wanted work done, the contractor wanted to do the work and make a living. Now, due to litigation, most of it bull, since these days everyones sue happy, even when the works done perfect, contractors have HAD to take steps to protect themsleves. Seriously tho...find another one you can live with, and allow them to do the work. Express your concerns to the owner, or the job super, and make sure its done your way, but at the same time, make sure you allow them to do it their way too. Over all, it will work out for you and them...you want a roof fixed, and they want to fix it and make a profit doing so..its how business works. If you would see the insurance agreements in most grocery stores for example, you would never set foot in one again....yet, millions do, and few ever get hurt..except for the 1% of the legitimate injury cases that actually hit the courts.. Chances are, you could use that company and never have a problem...but bottom line, you dont trust them, find another, but keep in mind, they dont trust you either. |
wrote in message ups.com... I didn't take the time to read all articles of this agreement. You should have it checked out by a construction lawyer. It most probably will cost you to have it done. Suggestion: have the construction work done as an open bid competative project. Get at least 5 to 10 bids. That way you have your GC's working to give you the most reasonable price possible as well as giving you control of the workmanship. Examine their quotes. Get references. BBB check. And have them give you project references that you can physically check yourself. This is a trick I figured out myself. Put a prize and penalty clause in the contract: the GC is to get a 1% increase of the total bid quote for finishing for each week prior to established date of completion. And that the GC will forfeit 1% of the total bid quote for each week of delay beyond the established date of completion. Make sure there is also a clause stating that the GC has not declared bankruptcy within the last 3 yrs. And that neither has any member of his family done so as officer of his or any other similar businessed company. See to it that his company has not changed hands under similar circumstances. In 12 yrs of international construction contracting (about one every 3 weeks), I had only one GC that didn't meet his deadline. the mind boggles. please. You can do better. Few in the construction business on projects over a million dollars ever see one one come in on the original schedule...and the 1% per week clause... gimme a break. you think one size fits all? not hardly. I dont appreciate being lied to. Phil Scott |
It is most unusual to find Articles of Incorporation that state specific
business activities. The general AI say the "purpose" of the corporation is to "engage in any activities or business permitted under the laws of the United States and Florida." I've never seen Articles of Incorporation that don't use that broad langusge. If they are doing anything other than "roofing, siding and gutters" they *may* be operating in violation of their Articles of Incorporation and this may place them in some legal jeopardy. Ask the Department of State or an attorney. Regarding GC's doing roofing see: http://www.state.fl.us/dbpr/os/hot_t...ase_05_148.pdf Perhaps the fact that their Articles of Incorporation specify roofing has something to do with getting by "easier" in Florida under the active executive orders. And you know their office is in Minnesota - right? "Doc" wrote in message ink.net... "rj" wrote in message . .. Checking the Florida Department of State website ( http://www.tinyurl.com/atwbg ) I see in their Articles of Incorporation that their business activity should be limited to "roofing, siding and gutters." Hmm. I was under the impression that general contractors in Florida can do the whole house if they have a roofers license. In fact, the insurance company strongly urges getting a general contractor so they can handle it all - roof, carpet, drywall. These people supposedly are a general contractor. Additionally, I do NOT find any listing for them as a licensed contractor on the DBPR website (what is their license #???) CGC1507721 ( https://www.myfloridalicense.com/Default.asp ) The following document from myflorida.com gives some good tips (avoid door-to-door peddlers, etc.) http://www.myflorida.com/dbpr/dbpr/n...home_jan04.pdf Most importantly, the contract, by law, should have the contractor's license number on it and you should demand a "Certificate of Insurance" from the contractor's workman's comp and general liablity carrier. Note the carrier provides it to you directly upon the contractor's request to them. Are you still seeking repairs from the '04 storms? Yes. By the way, for anyone reading this, I appreciate all the input. |
"Doc" wrote in message nk.net... For what it's worth, the name of the company is ABC American Building Contractors - Insurance Restoration Services, Inc. According to the field rep who I talked to, they're supposedly a national company. Anyone ever heard of / dealt with them? I originally heard of them when a guy came around going through the neighborhood with door hangers. There are many 'national' companies that are complete rip offs. Their contract tells you who they are.... self interested with no intest in your welfare. a good contract provides for both parties best interests contrary to what some in the semi literate set think. there is ample legal precident on that. Phil Scott |
Comments inserted:
"Carolina Breeze HVAC" wrote " 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT" 5% isnt high. There are contracts here that allow up to 25% of the total to be added. Your contractor isnt a bank, therefore, he wants his money too. The problem lies with a late charge after 15 days, they already have an interest clause in the contract. This next one, would be worthwhile to forward to the State Attorney General. They think they're clever by putting the "not as a penalty", where as it is a penalty, and not allowed in any state. Its allowed here...sorry. Therefore, where do you get off saying its not allowed in any state? If I go buy $100,000 of parts and supplies on a contract that was signed by you, and you break the contract cause the weather changed, then damn right you are gonna pay something. I suggest you read up on penalty clauses, they are not allowed in any state. By saying it is not a penalty clause, flashes a light at "look at me", I'm really liquid damages. Sorry, that doesn't hold water in a court. There should be no mention of penalty what-so-ever. Your example of "x" amount for parts is totally irrelevant to the paragraph mentioned. They want 50% down, surely you read the contract. "11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION." So..if the contractor goes out and buys materials that he will be charged at least 25% restocking fees on should you cancel, or worse yet, be unable to return, you just potentially screwed the hell out of him. You read the outlined payment schedule, didn't you? What is the problem? Simply outrageous, put in to leave the owner holding the bag. "15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF." Nope. Thats called what your homeowners insurance is for. If the roofs already missing off your home, and the contractor starts work on it, and you get another storm, you are going to hold the contractor liable for anything that happens after he starts work? Wrong. The way I read it is simple: So long as his company took action to keep rain from entering, be it tarps, more plywood laid over etc....and you get another storm, and you get a leak that takes out your new $2000 widescreen, hes not gonna pay for it. Nor should he. Total hogwash. This type of job can be totally dried-in. Then it becomes "their word" against "your word". If a company won't stand behind their in progress work with a minimum of one million liabilty (some areas require up to triple the amount), their contract isn't worth reading in the first place. The customer is supposed to point out wood rot? That's an obligation by the construction crew, to notify the consumer of problems. Nail pops can show up after the new roof, because the nails weren't driven properly. This clause is a go-ahead to rip off the consumer. "17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS." Here, that would be called a hidden damage clause. Meaning, that if during the course of the work, any hidden damage is found that was not quoted for repair due to it not being able to be seen, then the contractor stops and allows the customer to make up his mind as to what and how to proceed, after of course, IF needed requoting. It should say hidden damage. I suggest you not take anything for granite, and read what it actually does say. Pay close attention to the part of "deficiencies that manifest themselves during the construction process". What that says, if a problem arises regardless of fault, they will not take on liability, and you will pay. the consumer is SOL, and they do less than desirable workmanship. "19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH." Thats a lawyers way of inserting a mold protection clause. Mold is the new asbestoes of the new era, and you will find something like that on most every contractors forms, unless hes wanting to find that one person who would go sue for millions over something that was in his house before, and he just didnt have the circumstances prevaliant for it to manifest itself. That's a way to attempt to shrug liabilty issues. I'm afraid case law has already ruled in favor of the consumer. What's the potential damage which can occur above agreement.....priceless. "20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT." And you checked to see if he had insurance right? What that clause is stating as I read it, as a contractor, that if you sue, and you already sound like one that would, HIS outlay of liability isnt going to be more than the amount you agreed to. His INSURANCE company on the other hand, isnt listed, and THATS what insurance is for. Wrong. Contractors are liable, you can not write I am not liable for damages, and believe you are free and clear of liability issues. If you don't carry enough insurance, guess what's next? You're right about one thing, I have sued and won, and won, for clients that have been taken by disgraceful contractors. The bottom-line on a contract like this, it would cost a consumer, more for legal fees, than the fight would be worth. |
I don't care if he can produce satisfied customers, they could be
ringers. I am a heating and air conditioning contractor. I would be ashamed, ASHAMED to give my customers a contract like that. At best, I would run as fast as possible away from this dude. At worst, give Angelo (or Pedro, or Patrick or Mustaffa) a little something to go bust his kneecaps :-). Stretch |
There was a company by that name years ago in SC. They got sued so much
they left the state, Moved to NC. May be no connection. But companies like names that begin with A, because it puts them first in the phone book. The language of their contract scares me. I would put a big plastic tarp on the roof for now and keep looking for a good contractor. Stretch |
"Phil Scott" wrote in message ... "Carolina Breeze HVAC" Your comments are attempts to justify an utterly bogus contract. You are doing this by saying correctly that the contractor needs protection...while ignoring the obvous fact the contractor has deprived his customer of the customers legitimate rights. Not impressive. Phil Scott Bogus? I bet they paid some lawyers big bucks to write that. Fancy contracts is a way of life with national companies. Ever read the fine print on your credit card agreement? What makes America great is that all you have to do is say "no thanks" and be on your way. Below is typical wording of a quotation in my industry. In that industry for 35 years, I've only ever seen one sentence of this actually used in a dispute and since it was an industry practice, it was finally accepted by the buyer. GENERAL TERMS AND ^CONDITIONS' 1. AGREEMENT. Our entire agreement consists only of the terms and conditions set forth below or on the front page hereof and any specifications or other documents specifically referred to Herein. The terms of this Quotation relating to price/ - description of goods or services, terms of payment and time and manner of delivery, shall be superseded by a subsequent acknowledgement from us to the extent any of such terms therein vary from those set forth herein, PRICE AND DELIVERY. Unless otherwise specified herein, all prices are f.o.b. our plant, no transportation allowed, with Buyer to pay all charges for special packing and shipping. All quoted prices will remain in effect for a period of 30 days from the date of Quotation. If method / routing of shipment is not specified by Buyer, we shall ship via any reasonable method and routing. We will have no responsibility for loss or damage resulting from blocking or staying of goods for transit. Upon our delivery of goods to a carrier for delivery to Buyer, Buyer shall be deemed to have received the goods and risk of loss shall be Buyer's irresponsibility. If in our judgement the ability of the Buyer to pay when due becomes impaired, we may withhold shipment (without prejudice to our other rights) SPECIFICATIONS. Buyer will indemnify and defend us as to any and all legal proceedings, claims, demands, damages, costs, expenses and attorney's fees arising from any alleged infringement of patent or trademark in the manufacture of goods to the extent that Buyer furnishes specifications, drawings, notes, instructions, engineering notices or other techni- cal data to us for us to follow in manufacturing the goods covered hereby. In addition, any such specifications or other materials are made a part of our agreement and as to such goods manufactured, NO WARRANTY OR GUARANTEE AS TO MERCHANTABILITY OR FITNESS THEREOF FOR ANY PARTICULAR PURPOSE IS MADE BY US UNLESS THE SAME IS OTHERWISE SPECIFICALLY STATED BY US IN WRITING. DELAYS. We will not be liable for loss or damage of any kind resulting from delay or inability to deliver goods arising directly or indirectly on account of fire, flood, labor troubles, accident, acts of civil or military authorities, shortages of labor, fuel, power, materials, supplies or transportation or from any other cause beyond our control. LIABILITY. We warrant that our goods will be free from defects in materials and workmanship and in compliance with any specification etc. furnished to us. In the event of defective goods. Buyers sole and exclusive remedy for any loss it suffers is to receive, at election, a credit from us, in the amount agreed to by us, or replacement of the good by us. In no event will we be liable under our own warranty (or in any action of contract or tort related to goods sold) for any labor, downtime, increased expense of operation of any equipment, loss of anticipated profits or consequential damages of any kind. Claims for defective goods, or for any other cause, shall be deemed waived and released by Buyer unless made in writing and received by us within ten days after Buyer's receipt of the goods. Any goods as to which no valid claims are made in pursuant to the foregoing shall be paid for when due regardless of any other controversies between us relating to other goods. Buyer agrees to hold us harmless against all claims made by persons other than the Buyer arising out of our goods. SALES & SIMILAR TAXES. No sales, use or similar taxes on the goods are included in prices specified herein. Such of these taxes as we are required to pay shall be added to the price and paid by the Buyer to us. CHANGE IN SCOPE After an agreement has come into existence, no changes shall be made except by mutual written agreement as to the price and nature of change. CANCELLATION. Upon written notice from Buyer, our agreement may be cancelled upon concurrent payment of the total of our cost previously incurred, our then existing commitments, any costs we incur as the result of cancellation, plus fifteen percent of such total contract price with us. STORAGE. At our option, goods may be stored at Buyer's risk and expense in the event of Buyer's request to defer manufacture or delivery. ACCEPTANCE. No agreement shall be binding on us until accepted in writing by our duly authorized officer at our plant. ASSIGNMENT No proposal or agreement may be assigned by Buyer without written consent. PROPER LAW. All matters concerning a proposal or agreement based thereon shall be governed by the laws of the state of manufacture. WAIVER. A waiver by us of full compliance with these terms and conditions on any occasion shall in no way constitute a course of conduct obligating us to waive full compliance on any other occasion. MOLDS, DIES OR TOOLING. It is acknowledged that if BUYER is supplying molds, dies or tooling to us to enable us to manufacture goods for BUYER, we hold the same at the sole risk and expense of Buyer and we will not have any liability whatsoever beyond routine maintenance except to repair or replace the same in the event of damage thereto caused by our willful acts or gross negligence. Buyer should obtain any insurance with respect thereto as Buyer deems proper. We shall maintain possession of the molds, dies and tooling until Buyer has paid us all amount due. |
"Ken" wrote in message ... Comments inserted: "Carolina Breeze HVAC" wrote " 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT" 5% isnt high. There are contracts here that allow up to 25% of the total to be added. Your contractor isnt a bank, therefore, he wants his money too. The problem lies with a late charge after 15 days, they already have an interest clause in the contract. This next one, would be worthwhile to forward to the State Attorney General. They think they're clever by putting the "not as a penalty", where as it is a penalty, and not allowed in any state. Its allowed here...sorry. Therefore, where do you get off saying its not allowed in any state? If I go buy $100,000 of parts and supplies on a contract that was signed by you, and you break the contract cause the weather changed, then damn right you are gonna pay something. I suggest you read up on penalty clauses, they are not allowed in any state. By saying it is not a penalty clause, flashes a light at "look at me", I'm really liquid damages. Sorry, that doesn't hold water in a court. There should be no mention of penalty what-so-ever. Your example of "x" amount for parts is totally irrelevant to the paragraph mentioned. They want 50% down, surely you read the contract. "11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION." So..if the contractor goes out and buys materials that he will be charged at least 25% restocking fees on should you cancel, or worse yet, be unable to return, you just potentially screwed the hell out of him. You read the outlined payment schedule, didn't you? What is the problem? Simply outrageous, put in to leave the owner holding the bag. "15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF." Nope. Thats called what your homeowners insurance is for. If the roofs already missing off your home, and the contractor starts work on it, and you get another storm, you are going to hold the contractor liable for anything that happens after he starts work? Wrong. The way I read it is simple: So long as his company took action to keep rain from entering, be it tarps, more plywood laid over etc....and you get another storm, and you get a leak that takes out your new $2000 widescreen, hes not gonna pay for it. Nor should he. Total hogwash. This type of job can be totally dried-in. Then it becomes "their word" against "your word". If a company won't stand behind their in progress work with a minimum of one million liabilty (some areas require up to triple the amount), their contract isn't worth reading in the first place. The customer is supposed to point out wood rot? That's an obligation by the construction crew, to notify the consumer of problems. Nail pops can show up after the new roof, because the nails weren't driven properly. This clause is a go-ahead to rip off the consumer. "17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS." Here, that would be called a hidden damage clause. Meaning, that if during the course of the work, any hidden damage is found that was not quoted for repair due to it not being able to be seen, then the contractor stops and allows the customer to make up his mind as to what and how to proceed, after of course, IF needed requoting. It should say hidden damage. I suggest you not take anything for granite, and read what it actually does say. Pay close attention to the part of "deficiencies that manifest themselves during the construction process". What that says, if a problem arises regardless of fault, they will not take on liability, and you will pay. the consumer is SOL, and they do less than desirable workmanship. "19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH." Thats a lawyers way of inserting a mold protection clause. Mold is the new asbestoes of the new era, and you will find something like that on most every contractors forms, unless hes wanting to find that one person who would go sue for millions over something that was in his house before, and he just didnt have the circumstances prevaliant for it to manifest itself. That's a way to attempt to shrug liabilty issues. I'm afraid case law has already ruled in favor of the consumer. What's the potential damage which can occur above agreement.....priceless. "20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT." And you checked to see if he had insurance right? What that clause is stating as I read it, as a contractor, that if you sue, and you already sound like one that would, HIS outlay of liability isnt going to be more than the amount you agreed to. His INSURANCE company on the other hand, isnt listed, and THATS what insurance is for. Wrong. Contractors are liable, you can not write I am not liable for damages, and believe you are free and clear of liability issues. If you don't carry enough insurance, guess what's next? You're right about one thing, I have sued and won, and won, for clients that have been taken by disgraceful contractors. And disgraceful, dishonest ones need to be taken out. Point being, you are wrong on a few items, and I might not have been corrct on all, but I can tell you this, I have prob been a contractor/owner as long or longer than you have been in law, and two things are for su There are contractors that NEED to be taken down and There is a lawyer ready to sue anyone, over anything. Thankfully, our state board, is mostly lawyers. The bottom-line on a contract like this, it would cost a consumer, more for legal fees, than the fight would be worth. |
Doc ) said...
I'm in Florida working on getting post-hurricane repairs made to my house. Replacement of the roof, drywall replacement in several rooms and full house carpet replacement. I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company. I realize many of you aren't attornies but am hoping some have had experience with this sort of issue and see what you think about some points on the agreement - under each I'll include any questions concerns about the point. If you see something, by all means speak up. [snip] Regardless of what is pre-printed on a contract, if you do not want something in there, you have the right to cross it out, make modifications, or add new sections. Do so, keep them reasonable (a contract is supposed to be fair to both sides, but that is probably why you would want changes) and initial each of your changes. Of course, they don't have to accept your changes, but you won't be locked into accepting their original terms if you have only signed a modified contract. Be up front, or be sorry. This goes for anything in life where something has to be signed. I once had to sign admission papers when my wife went into hospital and if you ever read these things, you are basically giving them permission to do any test and procedures for any possible reason that they feel is necessary. I crossed out that section and wrote in amedments restricting them to specifics related to the admission plus emergency procedures for life threatening situations. I know, this could be open to interpretation, but at least I felt better than signing a blank cheque. The clerk reacted like I had made amendments to the Bible! Still, they had to accept what I had done as it was not unreasonable. -- Calvin Henry-Cotnam "Never ascribe to malice what can equally be explained by incompetence." - Napoleon ------------------------------------------------------------------------- NOTE: if replying by email, remove "remove." and ".invalid" |
I'm a contractor relationship newbie. To date I've never paid a cent to
a contractor, personally. I'm a DIY guy from way back, however that's gonna change soon, and that's for sure. My house needs a lot of work that's simply beyond me - foundation, roof repair, tons of stuff. I checked out a video from the library a few days ago that I'm sure you would find very interesting. I watched it the other day and found tons of great stuff pertaining to your situation. It's put out by the BBB and titled "Hiring A Home Contractor." If you look, you should have trouble finding the video and it may save you a ton of money and problems and may help you achieve your goals. Good luck! Dan |
This type of contract is only used by companies who don't have faith in
their work. Kinda like the usless guy who puts on his boots everyday to lean on a shovel. He thinks because he existed ther is deserves to get paid, and isn't going to accept responsibility for his problems and damage. SOUNDS LIKE THEY ARE COVERING THE ISSUES THEY HAVE GOTTEN IN TROUBLE FOR BEFOR. "Carolina Breeze HVAC" wrote in message ... "Ken" wrote in message ... "Edwin Pawlowski" wrote Most of the clauses are standard language stuff from the Commercial Code. Eds right BTW, but playing Devils Advocate in this post....read on.. Tell me you're kidding. There is nothing standard about the parts below. " 3. SHOULD DEFAULT BE MADE IN PAYMENT OF THIS AGREEMENT FOR MORE THAN FIFTEEN DAYS, A LATE CHARGE EQUAL TO FIVE PERCENT" 5% isnt high. There are contracts here that allow up to 25% of the total to be added. Your contractor isnt a bank, therefore, he wants his money too. This next one, would be worthwhile to forward to the State Attorney General. They think they're clever by putting the "not as a penalty", where as it is a penalty, and not allowed in any state. Its allowed here...sorry. Therefore, where do you get off saying its not allowed in any state? If I go buy $100,000 of parts and supplies on a contract that was signed by you, and you break the contract cause the weather changed, then damn right you are gonna pay something. "11. IF THIS AGREEMENT IS CANCELLED BY THE CUSTOMER, CUSTOMER SHALL PAY TO THE COMPANY TWENTY-FIVE PERCENT (25) OF THE TOTAL AGREEMENT AMOUNT AS LIQUIDATED DAMAGES, NOT AS A PENALTY, AND THE COMPANY AGREES TO ACCEPT SUCH AS A REASONABLE AND JUST COMPENSATION FOR SAID CANCELLATION." So..if the contractor goes out and buys materials that he will be charged at least 25% restocking fees on should you cancel, or worse yet, be unable to return, you just potentially screwed the hell out of him. Simply outrageous, put in to leave the owner holding the bag. "15. DURING THE DURATION OF THE WORK, THE CUSTOMER'S HOMEOWNERS INSURANCE WILL BE RESPONSIBLE FOR ANY INTERIOR DAMAGE AS LONG AS THE COMPANY HAS TAKEN APPROPRIATE ACTION TO PROTECT THE ROOF DURING THE REPAIR OF THE ROOF." Nope. Thats called what your homeowners insurance is for. If the roofs already missing off your home, and the contractor starts work on it, and you get another storm, you are going to hold the contractor liable for anything that happens after he starts work? Wrong. The way I read it is simple: So long as his company took action to keep rain from entering, be it tarps, more plywood laid over etc....and you get another storm, and you get a leak that takes out your new $2000 widescreen, hes not gonna pay for it. Nor should he. The customer is supposed to point out wood rot? That's an obligation by the construction crew, to notify the consumer of problems. Nail pops can show up after the new roof, because the nails weren't driven properly. This clause is a go-ahead to rip off the consumer. "17. THE COMPANY IS NOT RESPONSIBLE FOR PRE-EXISTING CONSTRUCTION DEFICIENCIES THAT MANIFEST THEMSELVES DURING THE CONSTRUCTION PROCESS, I.E. NAIL POPS, WOODROT, DECKING DEFLECTION, ETC. IF A CONSTRUCTION PROBLEM IS POINTED OUT PRIOR TO CONSTRUCTION AND COMPANY IS NOTIFIED IN WRITING, COMPANY WILL TRY TO ASSIST CUSTOMER TO CORRECT THE PROBLEM(S) ON A TIME AND MATERIAL BASIS." Here, that would be called a hidden damage clause. Meaning, that if during the course of the work, any hidden damage is found that was not quoted for repair due to it not being able to be seen, then the contractor stops and allows the customer to make up his mind as to what and how to proceed, after of course, IF needed requoting. This pretty much states no implied warranty what-so-ever. In other words, the consumer is SOL, and they do less than desirable workmanship. "19. COMPANY ACCEPTS NO LIABILITY TO INDEMNIFY OR HOLD CUSTOMER HARMLESS FOR DAMAGES TO PERSONS OR PROPERTY, EXCEPT THOSE THAT ARE THE DIRECT RESULT OF COMPANY'S NEGLIGENT ERROR OR OMISSION WHICH OCCUR DURING PERFORMANCE OF THE COMPANY'S WORK. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM MOLD GROWTH WITHIN ANY PART OF THE BUILDING ENVELOPE DUE TO MOISTURE ENTERING THE BUILDING ENVELOPE PRIOR TO COMPANY'S COMPLETION OF INSTALLATION OF THE ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS OR AS THE RESULT OF DAMAGE TO OR PENETRATION OF THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS BY OTHERS. CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY SHALL HAVE NO RESPONSIBILITY AT ANY TIME AFTER COMPLETION OF THE WORK FOR DAMAGES OF ANY KIND TO PERSONS OR PROP ERTY LOCATED BELOW THE INSTALLED ROOF SYSTEMS/MEMBRANE, SIDING, WINDOW AND GUTTER SYSTEMS, WHETHER OR NOT SUCH DAMAGES RESULT FROM (A) LEAKS OR WEATHER-ORIENTED SOURCES OR (B) MOLD GROWTH." Thats a lawyers way of inserting a mold protection clause. Mold is the new asbestoes of the new era, and you will find something like that on most every contractors forms, unless hes wanting to find that one person who would go sue for millions over something that was in his house before, and he just didnt have the circumstances prevaliant for it to manifest itself. What's the potential damage which can occur above agreement.....priceless. "20. THE COMPANY'S MONETARY DAMAGE LIABILITY FOR ANY CLAIM OF PROPERTY DAMAGE ARISING OUT OF THE COMPANY'S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENTSHALL NOT EXCEED THE TOTAL AGREEMENT AMOUNT." And you checked to see if he had insurance right? What that clause is stating as I read it, as a contractor, that if you sue, and you already sound like one that would, HIS outlay of liability isnt going to be more than the amount you agreed to. His INSURANCE company on the other hand, isnt listed, and THATS what insurance is for. Now, on a more serious note. Its obvious you dont trust the company, and in general, we dont trust anyone. The reason why is sue happy people. Business isnt like it used to be. I still have customers I can take care of with a handshake and never have to worry about. Then, you get the new one that you just dont have a good feeling about, and after years of doing this, there has been more than one time I have told them that I just didnt think we could satisfy them, and that we declined the work...only to find out later that another company did the work and they have had nothing but problems since it was done. If you dont trust the contractor that has given the quote, just walk away and dont sign anything. By the same token, you may find a contractor that after talking to you, states that he cant do your work, or prices it out of your ballpark. It goes both ways. That said, suggest you look around, find someone that has a reputation and ability that you trust, and then look his contract over. Many of the clauses in the contract will never apply to you, however, witihout them, that ONE person that is looking for a reason to try to get rich quick will find a way to manipulate it to his advantage. Contracts used to be simple...you wanted work done, the contractor wanted to do the work and make a living. Now, due to litigation, most of it bull, since these days everyones sue happy, even when the works done perfect, contractors have HAD to take steps to protect themsleves. Seriously tho...find another one you can live with, and allow them to do the work. Express your concerns to the owner, or the job super, and make sure its done your way, but at the same time, make sure you allow them to do it their way too. Over all, it will work out for you and them...you want a roof fixed, and they want to fix it and make a profit doing so..its how business works. If you would see the insurance agreements in most grocery stores for example, you would never set foot in one again....yet, millions do, and few ever get hurt..except for the 1% of the legitimate injury cases that actually hit the courts.. Chances are, you could use that company and never have a problem...but bottom line, you dont trust them, find another, but keep in mind, they dont trust you either. |
I am a contractor in the same area and have not heard that complaint in 10
months. I call bull****! "Edwin Pawlowski" wrote in message news:s3LHe.15783$QX2.6707@trndny01... wrote in message ups.com... Get at least 5 to 10 bids. That way you have your GC's working to give you the most reasonable price possible as well as giving you control of the workmanship. Not criticising your advice, but the OP is in Florida where there h s been a lot of hurricane damage. He's lucky to get two contractors to even look at the job let alone 5 or 10. Therein lies the problem. Lots of undesirables out to make a quick buck. Examine their quotes. Get references. This is the most important aspect of the job. If the guy is good, well established and has a good reputation you will have satisfactory completion. |
On Tue, 02 Aug 2005 01:21:39 GMT, someone wrote:
I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company.... hehehe, now you can see whay they are called CONTRACTors. OF COURSE anything they write, will be favorable to them. If you know enough to negotiate, and have the bargaining power to do so, have at it. Otherwise.... Reply to NG only - this e.mail address goes to a kill file. |
"v" wrote in message ... On Tue, 02 Aug 2005 01:21:39 GMT, someone wrote: I've found a General Contractor who says they can do the work. They left an agreement with me to sign before they'll begin any contact with the Insurance company.... hehehe, now you can see whay they are called CONTRACTors. OF COURSE anything they write, will be favorable to them. Not correct. For a contract to hold up in court is has to fair, equitable and just for both parties... good contractors know that and write fair contracts. I write better contracts, included in mine are liberal warranty terms...but also included are clause to protect myself if the client fails to pay progress payments and stalles the job then demands we stay on schedule. Phil Scott If you know enough to negotiate, and have the bargaining power to do so, have at it. Otherwise.... Reply to NG only - this e.mail address goes to a kill file. |
"It has to be 'reasonable' or its not enforceable. Most people
dont know that and get roped into rip off deals by business and government all the time... the fact that you signed does not mean you have to pay if payment puts you into an unviable, (not survivable or undue damaging position) therefore unreasonable situation. " This is one of the dumbest things I ever heard. So, you're saying if I sign a contract to buy a boat for $200k, agreeing to make payments, and then say, "It wasn't reasonable, If I have to continue to make payments on it, then I'll have to sell my house and won't have enought money to eat" , a court is gonna say, OK, no problem, it just wasn't a reasonable contract, it's invalid, you're off the hook? If that were the case, people would be bailing on all kinds of contracts for all kinds of BS reasons. The court isn't there to go back and decide how fair or reasonable the contract was. That was up to the parties that entered into it. As someone else pointed out, as long as it meets the important tests listed and doesn't violate law, then it's going to be held valid. Getting a bad deal by signing a bad contract doesn't mean a court is going to undo it and let you walk. |
"It's known as an "Unconscionable Contract" and there are provisions
under which a contract may be deemed unenforceable owing to such provisions. However, in order to meet such a criterion, the abuse has to be extreme and simply a higher than market value in and of itself would be unlikely unless it were truly and extreme case. In general, it would require some sort of deceit or other heinous action on the part of one party to create such a condition. That somebody agreed to pay $200k or a boat that might only be worth $150k or so would be very unlikely to elicit such a reaction unless there could be shown a willful misrepresentation on the part of the seller. Simply the excuse of not being able to afford the payments would not be sufficient, certainly. Here's a summary of the general provisions typical... "Unconscionable contracts are so unfair to one party that the contract becomes unenforceable, usually with respect to consumers induced to sign contracts via high pressure sales techniques or who misunderstood the requirements and conditions. Such contracts hide procedurally unfair terms in the fine print, contain exorbitant price or limit buyer's remedy (waiver of buyer's defenses, prohibiting buyer's recovery in case of product defects, limiting remedies to useless options, giving a seller the right to reposess items sold on credit regardless of payoffs on some of them)." Yes, I agree, you MIGHT win a case if you had some or all of these conditions present. But most of those type cases are brought against companies by the govt for doing that list of things many times to large numbers of consumers. I didn't see anything in the contract that started this thread that qualifies as grounds for throwing out the whole contract. For sure, it's a bad contract for the homeowner and I wouldn't deal with the company. I'd say much of it is unreasonable too, but I think they would likely hold up in a court of law. The problem I had was a previous poster suggesting that a contract had to be "reasonable" for it to be enforceable. Most people would say signing a contract to pay $200K for a boat that was only worth $150K was not reasonable. But I think we agree, it would be hard to find a court to rule the contract invalid on that basis. Courts don't get involved in figuring out if the contract was really fair, if somone should have gotten a better deal etc, unless it's way out of line and usually then in a number of areas that are totally over the top. |
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