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Ever seen this in a contract?

Discussion in 'Business Fundamentals' started by shovelracer, Aug 24, 2011.

  1. shovelracer

    shovelracer Senior Member
    Messages: 525

    I came across this today and dont recall ever seeing this before. There were some other rediculous clauses that make me wonder who would work like this, but this one is interesting.

    2. If Contractor defaults or persistently fails or neglects to carry out the work within 72 hours of written notice, Owner may terminate the Contract and take possession of the site and of all materials, equipment and tools owned by Contractor and may finish the Work by whatever method Owner may deem. If the costs to finish the Work exceed the remaining unpaid balance of the Contract sum, Contractor shall pay the difference to Owner.
     
  2. Pristine PM ltd

    Pristine PM ltd PlowSite Veteran
    Messages: 3,794

    Do you leave equipment on site???

    I have seen wording that the Owner will hire someone else, and that charge will be taken off the monthly charge to the Owner and you are done at that point as well.
     
  3. Rich Graz

    Rich Graz Senior Member
    Messages: 141

    That is hilarious, I find the difference to get the work done to be paid by the contractor and termination along with even using your onsite material expectable but take possession of equipment has to be a joke. 72 hours is a long time but if its a state of emergency and you are legally not allowed on the road, what do you do. "i'm sorry, heres the title to my truck and skid steer, please forgive me ". Your signing for them to legally steal from you, doesn't matter what they say, it's how the lawyer understands it.
     
  4. grandview

    grandview PlowSite Fanatic
    Messages: 14,609

    Just put an addendum in the contract that if doesn't pay in 7 days of invoice you have the right to sell his property and keep all proceeds for the sale.
     
  5. elite1msmith

    elite1msmith 2000 Club Member
    from chicago
    Messages: 2,762

    well there are two parts of that contract that you are talking about.

    A...if you dont do the work, he can hire someone else at what ever expense and bill you for it....that part is true, that is the reason that contracts are signed, to ensure you do your job

    B. him taking your property..... breaks into a few different parts like this

    1....is the contract written as he will be leasing you a spot for storage? if so he has to fallow local laws regaurding leasing property and after going to court i guess if you didnt move it, he has right to take it and sell it. but thats after months...not days.

    2.... If your property is being "allowed" to park on his property because your conducting business with him....well if you are not holding up your contract, then you are not conducting business any longer after 72 hours....so he could have it towed and removed from his property at your expense.

    3... material for job site....could be dependent on how your payments are set up..... in theory if the contract said something along the lines of "first months payment it to cover material expenses" then he owns it.


    but heres a few other interesting things to consider, these could be good or bad.

    A. if there is any terms or conditions, clauses, ... that are "ambiguity" ...meaning it is not clearly defined or written, in most states that clause or term will AUTOMATICALLY go against the person that wrote the agreement. The court does this because they figure the person wrote it messed up thinking it would be turned in their favor...wrong.

    B. No contract can break the law. that clause might void that part of the agreement, or even the entire thing.

    Personally, i would need to see more, but if you have experience, and confidence in your ability to do the job...then id sign it, because it would be hard for them to enforce. Then again...if you have any doubt think about if you are wrong what it could cost you. The part with them charging you the difference is legal, and let me tell you if someone calls me up middle of the storm telling me his guy never showed up.... Price doubles, and he signs with me the rest of the year
     
  6. swtiih

    swtiih PlowSite.com Addict
    Messages: 1,179

    Sounds like you need to show this to your lawyer. I wouldn't sign this.
     
  7. grandview

    grandview PlowSite Fanatic
    Messages: 14,609

    I would get ahold of your equipment and truck dealer because you'll be buying all new stuff next year. No matter what you do he will try and take your stuff.
     
  8. Eyesell

    Eyesell 2000 Club Member
    Messages: 2,101

    Got that right !!!!!
     
  9. Plow man Foster

    Plow man Foster PlowSite.com Addict
    Messages: 1,153

    Honestly i rather put my 7 year old behind the wheel or controls of my equipment than most of my customers!
     
  10. shovelracer

    shovelracer Senior Member
    Messages: 525

    here's some more standard:

    5. Contractor shall indemnify, defend, save and hold harmless XXX from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys' fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as "Claims") for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its owners, officers, directors, agents, employees or subcontractors. This indemnity includes any claim or amount arising out of or recovered under the Workers' Compensation Law or arising out of the failure of such contractor to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree.
    Contractor shall cause the same indemnification language to apply for any work performed by a subcontractor and for all subcontractors to indemnify and hold harmless, in the same manner, XXX.


    6. Contractor shall furnish to Owner a list of subcontractors Contractor will be engaging to perform portions of the work and a list of suppliers who will be furnishing material for the Project. To the extent required, all work shall be performed by duly licensed contractors or subcontractors authorized by law to perform such work. Contractor acknowledges and agrees that Owner will be harmed if Owner is not informed of subcontractors, but the extent of such damages is impossible to determine at this time. Consequently, Contractor agrees that in the event it hires subcontractors and fails to report such subcontractors to Owner, Contractor shall pay to Owner 10% of the total project costs in liquidated damages; provided that Contractor shall still remain liable to Owner for any actual costs that Owner may incur as a result of Contractor’s use of subcontractors without informing Owner, including reasonable attorneys fees.

    11. INDEMNIFICATION: Contractor hereby indemnifies and holds harmless XXX and its owners, partners, subsidiaries, affiliates, and employees (collectively referred to as the "Indemnitees"), and each of them, against and from any and all allegations, demands, claims, liabilities, damages, or costs of whatsoever nature (including reasonable attorney's fees) (“Claims”), arising out of or in any way connected with this Agreement, the Services provided by Contractor or any subcontractors of Contractor hereunder or any related act or failure to act by Contractor or Contractor Parties, and whether or not occasioned or contributed to by the negligence of XXX or any agent or employee of the Indemnitees, or any of them (except as and to the extent otherwise prohibited by applicable law). Notwithstanding the foregoing, XXX shall have the right to withhold from any payments to be made to Contractor any amounts reasonably determined by XXX to be owed by Contractor to XXX pursuant to this provision. By way of example, if Contractor damages a gate at XXX’s facility while providing the Services and the repair of such gate costs $500, XXX can deduct such amount from any amounts owed to Contractor.

    17. XXX may conduct an audit of Contractor’s financial, performance and compliance records maintained in connection with the operations and services performed under this contract. In the event of such audit, Contractor agrees to provide XXX with access to Contractor’s employees and make all such financial, performance and compliance records available to XXX.
     
  11. shovelracer

    shovelracer Senior Member
    Messages: 525

    Also add that they request a 4" trigger, but you need to be on call for under 4" and service within 6 hrs of request. Then every 3", but if there is more than 12" you need to get approval. Read as contractor must provide services as above, but at 12" total storm accumulation stop and obtain written approval to proceed. Sort of irrelevant if contractor selects seasonal option.
     
  12. grandview

    grandview PlowSite Fanatic
    Messages: 14,609

    Why are you even bothering with this guy? What happened to the guys equipment from last year who plowed the place/
     
  13. SullivanSeptic

    SullivanSeptic PlowSite Veteran
    Messages: 3,422

    Sounds like they are trying to bury you in paper work. They will make it very hard to operate properly. Any little mishap in paper work and your done. I would walk from this site. I would rather sit at home with my kids then work for free or get stiffed. Plenty of other work out there too. Just got to go out and find it.
     
  14. csi.northcoast

    csi.northcoast Senior Member
    Messages: 320

    i really like this idea. i would not walk but run away from that, unless you add that any use of contractor equipment will be subject to a $1000.00/hr rental rate and user has to provide 3 million in insurance naming you as additional insured
     
  15. swtiih

    swtiih PlowSite.com Addict
    Messages: 1,179

    This is getting worse , time to run
     
  16. buckwheat_la

    buckwheat_la 2000 Club Member
    Messages: 2,254

    I see that USM has got their new contract out.
     
  17. wizardsr

    wizardsr PlowSite.com Addict
    Messages: 1,551

    Appears that way. That contract is riddled with BS! Worst part is they'll find some dummy that will sign it, work for peanuts, lose their rear, then come on here trying to figure out what went wrong! :dizzy: