In response to a request from a contractor, last week I submitted a lump-sum proposal for a topo survey on the local college campus. It??s not a large project (about $4k for the topo), but the contractor is in a hurry to get it done.
A few days later I get the contractor??s draft agreement, full of indemnifications and subrogation waivers and not-to-exceed clauses. I drafted a list of the changes I need and sent it back.
This afternoon they sent a revised agreement, which reflected only 1 of the changes, the one that Brian, their contracts guy, ??is willing to accept.?
Me (2:45 p.m.):
Unfortunately, the modifications don't reflect the changes required. If you're not able to accommodate the changes per my email of November 4, please consider this email formal notification of withdrawal from the project. I suggest that you retain another land surveyor ASAP to avoid further delaying the project.
Thanks!
Them (2:56 p.m.):
Hi Jim,
Brian has requested that I make your required changes. However, I will have to do this first thing tomorrow morning.
On a related matter, I recently finished an expert witness gig involving a surveyor who performed his work -- staking grid lines for a large building -- diligently and competently, but made the mistake of agreeing to indemnify his client -- the general contractor -- for all claims against it on the project. The anchor bolt sub botched the installation, and the claims mounted fast. The sub's insurance was inadequate to cover the claims, so the general came after the surveyor for the balance. The surveyor's insurer eventually settled for a 6-figure sum. Do you think that'll affect his premiums going forward?
The moral of the story: read those contracts, and don't hesitate to insist on changes where necessary!
Wow. In my ignorance, I kind of thought lawyers were getting too hung up on these indemnification clauses. Apparently not.
Jim~
Curious if you could share with us the things that you asked for to be changed? I see these all of the time and lawyer-ese of the documents can really hide the true content. I've been lucky so far but the time will come and I rather be pro-active the not.
I have reviewed the draft contract you forwarded, but am unable to sign it in its present form. Please make the following changes and resubmit:
Article 4.1: Replace the text of this item with the following:
Compensation for the services shall be paid on a lump-sum basis. The maximum compensation for the services specified in Exhibit A, including all costs and expenses, is $4,200.00 (four thousand two hundred dollars and zero cents). Consultant agrees to complete all services enumerated in Exhibit A at no additional expense to TGI.Article 5.1: Replace the text of this item with the following:
Consultant shall submit an invoice upon completion of the services specified in Exhibit A.Article 5.2: Delete.
Article 5.3: Delete.
Article 6.6: Replace the text of this item with the following:
Consultant hereby agrees to provide TGI with documentation required to refute any claim that may be made against TGI based upon any contention by any third party that an employer relationship exists by reason of this Agreement.With regard to Exhibit B:
Delete the requirement for a general liability waiver of subrogation and the requirement for an excess liability umbrella.Please contact me if you have any questions.
Regards,
4.1: They wanted to pay me on a not-to-exceed basis, even though my proposal was clearly lump sum. NTE is a you-win-I-lose arrangement that I'll only agree to in very unusual circumstances.
5.1, 5.2 and 5.3 pertained to monthly invoicing and payment terms. I only plan to submit 1 invoice for payment in full upon completion, so I asked that 5.2 and 5.3 be removed.
6.6 involves indemnification for any claim arising from employment status, and it was way too broad. I narrowed it down to what I consider reasonable.
Exhibit B: Although I carry an liability umbrella policy, it's not as big as they want, and I don't really want them to know I have one anyway. And whenever I get a waiver of subrogation I get audited by my insurer, which is a half-day waste of my time feeding documents to an auditor in my home office, so I don't want anything to do with it. When I have to get one -- there are some public agency contracts that I like that require it -- I increase my fee to cover the time.
The indemnification clause in this contract actually isn't onerous, it only pertains to claims arising from negligent acts or omissions of the surveyor, so I didn't contest it.
I do a survey twice a year for a hydro power company. I charge them a very reasonable amount since it is the same thing every survey, basically a deformation survey of two walls and a scour survey of the stream bottom. Both required by a government agency that owns and operates the dam.
They recently said they had new safety protocols, which were very onerous, they wanted to see a detailed written safety manual, etc. I told them I am a two man operation, we do everything as safely as possible, but I could not justify meeting their requirements, especially for the price I charge them. Waited a couple of months, they called me today and said they dropped the requirements, how soon can I get out there.
In another situation I had a large engineering company ask me to do some office processing, a bluebook submittal. They wanted me to send them insurance certificates for general liability, my auto policies, workers comp, etc. I will do that for clients that have field work for us, if requested, but that was ridiculous for pure office work.
Both of the above I attribute to too many lawyers in our society. Unfortunately I am aiding and abetting that problem, my daughter is in her third year of law. At least now I will have one on my side.
John, I worked as a Safety Consultant to an electrical contractor in a power plant here. They were to relocate one switching cabinet in a motor control center, a small (three day) job. They have boiler plate safety requirements for EVERY contract and have a separate pay item for safety. On this job we had 4 people. A foreman/QA/QC (not allowed to perform work, only supervise), one journeyman, one apprentice and me. I spent three days in air conditioned comfort watching two men work. It was crazy and I had a hard time not lending a hand. If they insist on the contract requirements in the future perhaps you can ask that you/they hire a contract safety professional.
Andy
If more people / companies would refuse to adhere to these ridiculous standards maybe common sense could be re-established.
I had to shave to enter a facility recently, despite the fact that:
- I was only there one day
- I wasn't working anywhere near their production areas
- I wasn't going to be fit tested
- There wasn't going to be a respirator available even if I did need it
Technically I wasn't even working in their facility, but I had to pass through their facility to get to the area where I was working. That was the first time I was clean shaven in probably twenty years or so.
Shave? I don't even own a razor.
Jim. Thank you for this excellent thread! Thank you very much.
"On a related matter, I recently finished an expert witness gig involving a surveyor who performed his work -- staking grid lines for a large building -- diligently and competently, but made the mistake of agreeing to indemnify his client -- the general contractor -- for all claims against it on the project. The anchor bolt sub botched the installation, and the claims mounted fast. The sub's insurance was inadequate to cover the claims, so the general came after the surveyor for the balance. The surveyor's insurer eventually settled for a 6-figure sum. Do you think that'll affect his premiums going forward?"
The moral of the story: read those contracts, and don't hesitate to insist on changes where necessary!
Wow! This is why I send EVERY contract not prepared by me to our E&O carrier for review - NO exceptions.
Jim in AZ, post: 454736, member: 249 wrote: Wow! This is why I send EVERY contract not prepared by me to our E&O carrier for review - NO exceptions.
Also, a good tip.
There have been some weird proposals come across the desk recently. Not worth the time to bid.
One cup o joe, post: 454656, member: 13184 wrote: Shave? I don't even own a razor.
ditto that
MightyMoe, post: 454783, member: 700 wrote: There have been some weird proposals come across the desk recently. Not worth the time to bid.
I have had no problem turning down requests for work that smelled too overburdened with red tape, layers of inane requests and fraught with legalese. I keep very busy without those distractions to my workflow.
Licensed Land Surveyor
Finger Lakes Region, Upstate New York
I would turn down the job if being completely cleanshaven was a key requirement.
Pretty much any contract to you, a surveyor as a sub to a contractor, will be a construction style contract and not a professional services type contract. That in and of itself may render your insurance null and void. We always provide them with our fully vetted contract. If they don't agree to it we don't execute the contract.
