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.
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.
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.
Its weasly in many aspects.. unclear is always bad..especially when it allows for escallation explicitly.
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.
"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.
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.
Another set of red flags ..
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.
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.
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.
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.
Thats legitimate.. other legitimate clauses are often used as smoke to distract from the bogus ones.
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.
Oh ya...
I
Dealing with these guys would be the negative circumstance.
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.
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.
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.
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.
I live in Florida too and have had work done by contractors on my house. I have never seen a contract like that.
Did you check to see if they have a license and how long. Check with Better Business and Consumer affairs and see how many complaints have been filed against them. I bet many.
My roofing contractor brought me a copy of their liability insurance, workmans compansation ins. etc.
There are a lot of crooked contractors in this state. Hopefully you haven't signed anything yet. DON'T. You have the wrong contractor.
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:
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?
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?
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"?
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?
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.
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?
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?
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?
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".
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.
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.
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.
All prepared contracts (as opposed to negotiated contracts) are onerous -- designed to protect the contractor rather than the client and rather than being fair and balanced.
I am a contractor, in Alberta rather than Florida, and I'd be embarassed to ask my clients to sign off on some of those provisions. Not all those provisions would be upheld here, but that doesn't help you in Florida.
I'd talk with a contract lawyer there, I'd check with a couple of other companies, and I'd sure check references.and any state agencies that might help.
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.
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."
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
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.
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.
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