Owner Withholding Payment - Page 3 - Business - Contractor Talk
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Owner Withholding Payment

 
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Old 05-17-2009, 06:32 AM   #41
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Re: Owner Withholding Payment


again we are not discussing the event, which by the way was not careless operation.

we are discussing the owner withholding funds from the final payment.
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Old 05-17-2009, 07:42 AM   #42
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Re: Owner Withholding Payment


The event is that a resident file a complaint that you caused damage to his property. The project owner did not pay you for that reason, I don't know if he will use that money to cover the damages, or he is holding back the money so he can investigate further what happened. You are liable for that damage.
Read ARTICLE 6 – CONTRACTOR’S RESPONSIBILITIES.

A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention
thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the
Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction.

6.11 Use of Site and Other Areas
A. Limitation on Use of Site and Other Areas
1. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations
of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably
encumber the Site and other areas with construction equipment or other materials or equipment. Contractor
shall assume full responsibility for any damage to any such land or area, or to the owner or occupant
thereof, or of any adjacent land or areas resulting from the performance of the Work.
2. Should any claim be made by any such owner or occupant because of the performance of the Work,
Contractor shall promptly settle with such other party by negotiation or otherwise resolve the claim by
arbitration or other dispute resolution proceeding or at law.
3. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless
Owner and Engineer, and the officers, directors, partners, employees, agents, consultants and
subcontractors of each and any of them from and against all claims, costs, losses, and damages (including
but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all
court or arbitration or other dispute resolution costs) arising out of or relating to any claim or action, legal or
equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified
hereunder to the extent caused by or based upon Contractor’s performance of the Work.

I am sure there is a s%^t load of other clause that they can use to hang if anything happens on you.

Did you have a lawyer read the contract before you signed and did he advised you what items you should consider revising to protect yourself?


Quote:
Originally Posted by rshackleford View Post
again we are not discussing the event, which by the way was not careless operation.

we are discussing the owner withholding funds from the final payment.
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Old 05-17-2009, 10:03 AM   #43
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Re: Owner Withholding Payment


I'm trying to decide who is the bigger boob here...the homeowner who is blaming some cracks in their drywall on some excavation work located over 300 feet away or the contractor who doesn't know that he has the right to stipulate his own terms into a contract.

I would like to see this homeowner prove that any of those cracks were caused by his work. Guess what...drywall cracks once in a while. Who came up with $3,800 number? Have you seen the damage? Maybe if the drywall was glued and screwed instead of being hung by duct tape it wouldn't have cracked. My point is .... listen to the initial advice and let the insurance company fight it out. It's only $3,800. Don't make a federal case out of it.

But if you don't learn that you always have a right to make admendments to contracts then you will have many problems like this in the future. A contract should be fair for all parties involved. If you don't like the terms of their contract you can make the adjustments at the time of your bid. You will not lose your bid bond if you do it this way. The only way to lose your bid bond is for them to accept your proposal and enter into the contract and then you back out of the contract. If they don't like your amendments to the contract then they won't enter into a contract with you and therefore your bid bond will not be at stake.

I'm not an insurance expert but my opinion is that a performance bond is different than a bid bond. So now you have the contract but for one reason or another you are unable to complete the project as contracted. That is when your performance bond kicks in to protect the owners interest shall the need arise to replace a nonperforming contractor.

These bonds are a pain in the a$$ and expensive to have but they are not a scam as some have indicated here. They are to protect owners interests and only neccessary because as we all know there are too many scam artist contractors out there that give the rest of us a bad name. These jackoffs that get in over their heads or never intend to finish the jobs in the first place cause the rest of us legit contractors to have to go through steps and costs like this once in a while to prove that we can and will finish what we start.
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Old 05-17-2009, 10:14 AM   #44
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Re: Owner Withholding Payment


Since you seem to be admiting that you did cause the damage, I revise by previous statement to "You must be the bigger boob!". How you damaged drywall in a house 300 feet away and yet you claim you were being careful I will never know. Since you are admiting fault, I don't even understand what your point of this post is. You F***ed something up so you should pay to have it fixed.

Man up and do the right thing and pay for your mistake.
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Old 05-17-2009, 12:59 PM   #45
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Re: Owner Withholding Payment


Quote:
Originally Posted by rshackleford View Post
i am going to let the insurance company determine if the money is due. that's why we pay them the big bucks i guess.

but the real question is if the owner can withhold that payment.

This comment right here shows why there are so many problems with society today. Instead of standing up for yourself and saying "if we caused this damage, we will repair it ourselves", you are allowing your insurance company to determine your level of fault, and fix it or settle on your behalf.

GUESS WHAT, they are going to look at it from a financial standpoint, would we rather fight to prove he is correct and did not cause the problem, or would it be more cost effective to just pay the claim? It is simple from their stand point, it is complicated from your's.

I would advise you to look at the damage, get your own estimates, pay for structral engineer's if that's what it takes. If you did not cause the problem, never let yourself/company be held liable for it! If you did cause it, fix it. I guarantee it will cost less than $3800.00 if you do it or have it done.

If you think you pay the "big bucks" for your insurance now, get a couple of unjustified claim settlements on there and see what your premiums look like then.

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Old 05-17-2009, 01:38 PM   #46
 
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Re: Owner Withholding Payment


As a warranty and complaint service technician for a major modular home builder, I can tell you it is usually best from a reputation standpoint to just pay up. It may not be fair but you do not want a bad rep from the BBB.
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Old 05-17-2009, 07:36 PM   #47
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Re: Owner Withholding Payment


Quote:
Originally Posted by greg24k View Post

Did you have a lawyer read the contract before you signed and did he advised you what items you should consider revising to protect yourself?
there is no revising these contracts. when you place your bid you accept the terms.

it also states that payment to the contractor cannot be changed unless by change order, this withholding has not been made by a change order.
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Old 05-17-2009, 07:39 PM   #48
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Re: Owner Withholding Payment


Quote:
The only way to lose your bid bond is for them to accept your proposal and enter into the contract and then you back out of the contract. If they don't like your amendments to the contract then they won't enter into a contract with you and therefore your bid bond will not be at stake.
incorrect. if i fail to deliver a contract (e.g. sign the contract presented to me by the engineer) then i will lose my bid bond. i have a limited time period, usually 24 hours, to retract my bid. to retract the bid i must prove that i made an error in my bid submission. "not agreeing to the terms of the contract" is not an error and not an acceptable reason for retracting my bid.
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Old 05-17-2009, 07:39 PM   #49
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Re: Owner Withholding Payment


Quote:
I'm not an insurance expert but my opinion is that a performance bond is different than a bid bond. So now you have the contract but for one reason or another you are unable to complete the project as contracted. That is when your performance bond kicks in to protect the owners interest shall the need arise to replace a nonperforming contractor.
you are correct, this is the reason for a performance bond.
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Old 05-17-2009, 07:42 PM   #50
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Re: Owner Withholding Payment


Quote:
Originally Posted by OGStilts View Post
Since you seem to be admiting that you did cause the damage, I revise by previous statement to "You must be the bigger boob!". How you damaged drywall in a house 300 feet away and yet you claim you were being careful I will never know. Since you are admiting fault, I don't even understand what your point of this post is. You F***ed something up so you should pay to have it fixed.

Man up and do the right thing and pay for your mistake.
i do intend to pay the bill, this isn't really about the money. i believe that contractually it is not legal for owner to withhold payment in this fashion. i am trying to find out if it is legal or not to make this withholding.
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Old 05-17-2009, 07:46 PM   #51
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Re: Owner Withholding Payment


Quote:
This comment right here shows why there are so many problems with society today. Instead of standing up for yourself and saying "if we caused this damage, we will repair it ourselves", you are allowing your insurance company to determine your level of fault, and fix it or settle on your behalf.
i havn't shared this info yet, but i tried to make the repairs and myself the HO spent 20 minutes with me on the phone using the most vulgar language imaginable. the home owner is unreasonable and has become an ass. this is why i am turning it over to the insurance company. also, by turning it over to insurance i will be protecting myself from a $50,000 structural damage claim next year from the same home owner who has learned that our company rolls over.
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Old 05-17-2009, 07:50 PM   #52
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Re: Owner Withholding Payment


from the posts here it would appear that most of you posting operate in a different world that i do. i would guess you all do private and residential work, probably under an architect not an engineer.

please respond with a post indicating if any of you have actually bid on a state or federally funded project requiring a bid bond or performed any work requiring a performance bond under the same funding circumstances.

additionally include in this post if the work was done under a professional engineer or an architect. believe me, many of you sound like you don't have a clue about government contract work.
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Old 05-17-2009, 07:51 PM   #53
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Re: Owner Withholding Payment


i wouldn't give my testimony online. save it for the courtroom.
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Old 05-17-2009, 08:17 PM   #54
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Re: Owner Withholding Payment


Quote:
Originally Posted by rshackleford View Post
incorrect. if i fail to deliver a contract (e.g. sign the contract presented to me by the engineer) then i will lose my bid bond. i have a limited time period, usually 24 hours, to retract my bid. to retract the bid i must prove that i made an error in my bid submission. "not agreeing to the terms of the contract" is not an error and not an acceptable reason for retracting my bid.
I'm not going to sit here and argue with you. Regardless if you are dealing with an architect or an engineer, or whether you are dealing with a government contract or a private contract, you have a right to agree or not agree to a contracts terms. If you don't like the terms in the standard contract you put your amendments or stipulations in your bid documents. Your bid documents become a part of the the contract, do they not? That is standard operating procedures no matter the type of contract it is. If the government doesn't like your amendments they will not accept your bid (which may be likely and that is why you may think that you can not amend the contract terms). Pretty simple. Bottom line is you can stipulate the terms you want in the contract and I don't see how you can say I'm incorrect.

I'm not claiming to be a lawyer but this is contracts 101 here.

If the homeowner is being an a$$ like it sounds like he may be, just let the insurance company deal with it which sounds like you are doing. As far as the owner holding your money, it doesn't sound like he is the one holding your money. It sounds like the town which you are doing the work for is holding the money. They are doing this to protect their interests and to make sure their tax payers who were wronged are taken care of. Talk to your lawyer but I don't see a problem with this.
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Old 05-17-2009, 08:32 PM   #55
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Re: Owner Withholding Payment


Quote:
Originally Posted by OGStilts View Post
Pretty simple. Bottom line is you can stipulate the terms you want in the contract and I don't see how you can say I'm incorrect.
many bid documents don't allow this and i have never seen or heard of it being done. you are incorrect and by your response i assume you have never worked on a government funded project nor for an Engineering firm

i did my first job for an architect last year and felt uncomfortable through the whole thing. there is a huge difference between working for an Engineer and an Architect. You would know if you had the experience.

the same goes for government funding and private funding.
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Old 05-17-2009, 08:37 PM   #56
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Re: Owner Withholding Payment


You like your whiskey don't you?
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Old 05-17-2009, 08:42 PM   #57
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Re: Owner Withholding Payment


Quote:
Originally Posted by rshackleford View Post
many bid documents don't allow this and i have never seen or heard of it being done. you are incorrect and by your response i assume you have never worked on a government funded project nor for an Engineering firm

i did my first job for an architect last year and felt uncomfortable through the whole thing. there is a huge difference between working for an Engineer and an Architect. You would know if you had the experience.

the same goes for government funding and private funding.
Looks like no one here is up to your calibre of experience. Obviously, you're not getting an answer here you like, so I'd say go speak to your lawyer about it. Heck, we can't even vote in your poll. We're just a bunch of construction idiots.
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Old 05-17-2009, 08:45 PM   #58
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Re: Owner Withholding Payment


you are not idiots, but i get the feeling that while we are both in construction i am in the municipal side of things and most of you here are in the private side of things. so, no i am not getting the answer i like, but mostly it seems because our backgrounds and projects type are so different.

i am working in the streets and you are all working on the private property. my work ends where yours starts!
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Old 05-17-2009, 09:40 PM   #59
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Re: Owner Withholding Payment


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That makes it a bit stickier. Did you have to post a bond for this type of damage? I think you are on the right track with contacting your Insurance company. They will provide a lawyer to you at no cost to review everything. They will also ferret out wether the HO is trying to pull a scam. Was only one home damaged? Or only one home you had to get close enoough to. then there might be issues with their structure if say you are digging between two houses and only one was damaged.
Most likely, your insurance company is not going to pay a lawyer $3500+ to decide whether or not you are liable. They are going to pay the homeowner $3800. They call it a nuisance payment. This is just my guess and has been one of many past experiences. The amount of $3800 sounds high for cracked drywall. I could see $15,000 to $250,000 if you cracked the foundation.

Speak with the homeowner. Act like you are concerned. Bring in some experts and build your case. Get evidence and opnions in writing, or bring in your own contractor and make the repairs. I would not bother my insurance company for a small claim like this one.
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Old 05-17-2009, 09:55 PM   #60
 
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Re: Owner Withholding Payment


God help you when Line 6 paragraph A subsection 2 of your "muinicipal" contract states that your going to take it up the keyster every Monday at 3PM.

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