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Help with contractual condition for non performance...

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Help with contractual condition for non performance...

Old 06-21-2018, 06:19 PM
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Default Help with contractual condition for non performance...

So I need some help guys...
Like many pool contractor the one I contracted is always behind and giving excuses after excuses, blaming others, etc..
I was ready to let legal counsel deal with the guy, but he came begging to let him finish the job and promising a HARD completion date as well as progression dates, in writing...

My question to him was... "OK, what happens if you do not make it?" so it is up to me to put on the table some kind of "remediation/backcharge"(?) clause/condition/penalty..

Just as an example.."If the contractor does not complete project on XX/XX/XXXX date, 1% of total contract amount will be deducted for every week the completion date gets extended"

or something like that...

My problem is that I want to be fair, and I'm not sure what would be acceptable... 1%?, 2%?, 5%? for every week he is late? every 2 weeks? should I go with a set amount instead of a %?
Any other way, to structure it?
Old 06-21-2018, 06:22 PM
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So all your arrogance is coming home to roost?
Old 06-21-2018, 06:29 PM
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What did your original contract say as to completion?

And you think a lawyer is going to help speed up your pool construction? Good luck with that...
Old 06-21-2018, 06:31 PM
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Do you have a contract with him? Probably don't see it much in residential contracts but almost all commercial/industrial/public works contracts had "liquidating damages" clauses.

https://www.constructionlawtoday.com...why-have-them/
Old 06-21-2018, 09:59 PM
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Originally Posted by Lucky69 View Post
What did your original contract say as to completion?

And you think a lawyer is going to help speed up your pool construction? Good luck with that...
He did not want to set a date in the contract originally. Verbally he said it would take a month and a half, which we are way past that.

Now he is more than accepting to set completion dates for each phase and for total completion, but I think that it would be worthless to set a date if there is not a consequence in writing to him not meeting that deadline... right?
Old 06-21-2018, 10:03 PM
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Originally Posted by Boataholic View Post
Do you have a contract with him? Probably don't see it much in residential contracts but almost all commercial/industrial/public works contracts had "liquidating damages" clauses.

https://www.constructionlawtoday.com...why-have-them/

That is exactly what I was referring to!!! thanks a lot for the link!!!
We used to have them when I used to work for the airport but really do not know what would be acceptable to set for a small contract like this one... I guess I will have to come up with an n amount that would incentivize the guy to finish on time...
Old 06-21-2018, 10:05 PM
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Guys... if you do not mind me asking... please!!!! do not feed the troll... no need to answer or quote him, we all know who he is and what he wants....
Thanks in advance!!!!!
Old 06-21-2018, 10:15 PM
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I agree losing a % every week for being late is a good idea but it needs balance. You don’t want to penalize him to the point he thinks it’s easier to walk away, you want to do it just enough that it dips into his fun and car payment funds. I mean everyone wants drinking money and a nice F250.
Old 06-21-2018, 10:26 PM
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Originally Posted by Lorne Greene View Post
I agree losing a % every week for being late is a good idea but it needs balance. You don’t want to penalize him to the point he thinks it’s easier to walk away, you want to do it just enough that it dips into his fun and car payment funds. I mean everyone wants drinking money and a nice F250.
EXACTLY!!!! that is why I was wondering what would be fair, but high enough to keep some fire in his A$$...

Although it can be done, changing contractors in the middle of the project can be a real PIA... I would prefer to avoid that...
Old 06-21-2018, 10:27 PM
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How much money is left in the contract and how many weeks?
Old 06-21-2018, 10:38 PM
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Originally Posted by Lorne Greene View Post
How much money is left in the contract and how many weeks?
30K, little less than 4 weeks.
Old 06-21-2018, 10:42 PM
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Originally Posted by emudryj View Post
30K, little less than 4 weeks.
$7,500/ week is a fair amount.

I would go with $6,200/ week with a lump sum of $5,200 at the end if done on time. If he is a week late he only gets a lump sum of $2,000 and if it hits two weeks than he forfeits the $5,200.

you also need to define milestones. You want X done on week one, Y done on week 2 and on and on.
Old 06-22-2018, 04:58 AM
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You start cutting money - he starts cutting corners.

I've been where you are, not with a pool but an entire house. It was supposed to take 6-7 months and took over a year. It sucks that it's not done on time but it's even worse if it's not done right. At this point, I'd be more concerned that it's done right.
Old 06-22-2018, 05:27 AM
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Sounds like the dude has already put the tip in, how much more do you want him sliding behind that?? Cut your future pain and find another contractor.....
Old 06-22-2018, 05:38 AM
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How much do you have in the job now? Have you spoken with any other contractors and gotten pricing on completing the project?
Bailey pretty much sums up my thoughts on the matter...I think any agreement you come to will only delay the inevitable and he's probably already made a decision about walking away if you don't give him what he wants.
Old 06-22-2018, 05:42 AM
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Well, I will be the first to ask then, in regards to the excuses, has there been any legitimacy to those? Has the rain been bad in your area, I know we all don't like getting pushed to the side for work we are forking over our hard earned dollars for, but I have to at least ask this question. If there has been a good amount of rain like a few areas has been getting over the last few weeks then he may not be lying when each and every one of his job sites gets delayed.

If nothing like that then think Lorne laid out a pretty decent option to pursue.
Old 06-22-2018, 06:18 AM
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Originally Posted by OReely View Post
You start cutting money - he starts cutting corners.

I've been where you are, not with a pool but an entire house. It was supposed to take 6-7 months and took over a year. It sucks that it's not done on time but it's even worse if it's not done right. At this point, I'd be more concerned that it's done right.
Surprisingly enough, this has been a very high point for him... He has not cheaped out on anything and seems to know the "building" part really well.
There were some unforeseen situations coming up that I thought I was going to have to fight to get them done right when they arose and was happily surprised by him handling them the right way without me telling anything, even when it cost hi more
If you ask me, managing and scheduling is his main problem, but his pool building knowledge seems to be pretty solid
Old 06-22-2018, 06:22 AM
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Originally Posted by Wolakrab View Post
How much do you have in the job now?
About 8K

Have you spoken with any other contractors and gotten pricing on completing the project?
Called 3. 2 of them were not interested in finishing somebody else's job (I fully understand), the other one said he would come by to look at it.

Bailey pretty much sums up my thoughts on the matter...I think any agreement you come to will only delay the inevitable and he's probably already made a decision about walking away if you don't give him what he wants.
.
Old 06-22-2018, 06:35 AM
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Originally Posted by olsaltydog View Post
Well, I will be the first to ask then, in regards to the excuses, has there been any legitimacy to those? Has the rain been bad in your area, I know we all don't like getting pushed to the side for work we are forking over our hard earned dollars for, but I have to at least ask this question. If there has been a good amount of rain like a few areas has been getting over the last few weeks then he may not be lying when each and every one of his job sites gets delayed.

If nothing like that then think Lorne laid out a pretty decent option to pursue.
I understand where you are coming from, and I'm a pretty understandable guy. There were some rainy days, but the main issue delaying the whole project (and other contractors) is managing.
Apparently, his engineer's drawings were missing some detail on the electrical permit, the electrician was supposed to give them to the engineer along with load calculations. The engineer does not get riser from the electrician, Engineer tries to get a permit approved with "standard template" riser drawings (planning to adjust with a revision later) but the town building department would not bite.

So the electrician blames the engineer, the engineer the electrician and the building dept., the pool guy blames the electrician and engineer, and I feel like when kids go to the teacher with the excuse that the dog ate their homework.

So, the WORK (as far as he can do before inspections) is done, but they cant shoot the gunite until we get the drawings done right, then permit is approved, and pass inspection.

I assume that he was not pushing the engineer/electrician too hard either, so he could get more time to do the work while blaming it on something else.
Old 06-22-2018, 06:39 AM
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He would be foolish if he signs anything like that. I bet he will balk at actually signing it.
If there is no completion date in original he is kinda off the hook.

You only real options- keep bugging/pushing him to finish
fire him and get someone else. ALWAYS hard and more expensive to get someone to come behind someone else

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