Contract Question

590 Views 10 Replies 8 Participants Last post by PApaints, 9 d ago

stelzerpaintinginc.

Discussion Starter · 28 d ago

Trying to sift through countless pages of legal jargon on a 58,000 sq.ft. tenant fit-out building, and most is fairly standard. One particular clause, the way it's written, would have me warrant against defects and workmanship for a period of 1 year after the grand opening versus one year after the completion of my work. Would that give you pause or is this something you've seen as well?

I'm doing the very thing I advise others not to do by asking painters for legal counsel, but I will have my attorney review everything as well. He still couldn't offer insight for what I'm asking about, which is whether or not you've experienced similar verbiage in contracts.

In that clause..."against defects and/or workmanship" it's the "defects" that bothers me, since damages from other trades could be easily thrown in that category.

I have no problem extending a warranty well beyond a year if asked, but I don't want to be on the hook for recurring damages once I've completed my work and everything has been signed off as completed. Who knows when the grand opening will be? Maybe it gets delayed due to unforeseen circumstances, theft, vandalism, etc. Maybe an investor backs out or a project manager gets Covid...you get my point.

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finishesbykevyn

· #2 · 28 d ago

stelzerpaintinginc. said:
Trying to sift through countless pages of legal jargon on a 58,000 sq.ft. tenant fit-out building, and most is fairly standard. One particular clause, the way it's written, would have me warrant against defects and workmanship for a period of 1 year after the grand opening versus one year after the completion of my work. Would that give you pause or is this something you've seen as well?

View attachment 115485

I'm doing the very thing I advise others not to do by asking painters for legal counsel, but I will have my attorney review everything as well. He still couldn't offer insight for what I'm asking about, which is whether or not you've experienced similar verbiage in contracts.

In that clause..."against defects and/or workmanship" it's the "defects" that bothers me, since damages from other trades could be easily thrown in that category.

I have no problem extending a warranty well beyond a year if asked, but I don't want to be on the hook for recurring damages once I've completed my work and everything has been signed off as completed. Who knows when the grand opening will be? Maybe it gets delayed due to unforeseen circumstances, theft, vandalism, etc. Maybe an investor backs out or a project manager gets Covid...you get my point.

I'm not sure what you personally have in your contract, but normal "wear and tear" or "trade damage" would certainly NOT be included as a defect or workmanship and I'm sure a paint Rep would back you on this. As far as the 1 year after "the grand opening", ya that's a bit shady..

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stelzerpaintinginc.

Discussion Starter · #3 · 28 d ago (Edited)

finishesbykevyn said:
I'm not sure what you personally have in your contract, but normal "wear and tear" or "trade damage" would certainly NOT be included as a defect or workmanship and I'm sure a paint Rep would back you on this. As far as the 1 year after "the grand opening", ya that's a bit shady..

Ya, we'd definitely have to rewrite it to quantify what is and isn't considered a defect. Walk around with the super or PM would be on video as well after completion. Follow-up walk around video would also be done by me to show all work was done per specs and free of "defects". There's a ton of little things like that in the contract though. About the only consolation is that since it is being built as a tenant fit out, they're usually much quicker turnover with less delays, but I can't rely on chance here.

Maybe a simple revision to clearly define "trade damage" would suffice. I've just never seen a contract to set end date as defined by "grand opening". Seems far too arbitrary and open to misinterpretation.

Edited first sentence, replaced "trade damage" with "defect".

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finishesbykevyn

· #4 · 28 d ago

stelzerpaintinginc. said:
Ya, we'd definitely have to rewrite it to quantify what is and isn't considered trade damage. Walk around with the super or PM would be on video as well after completion. Follow-up walk around video would also be done by me to show all work was done per specs and free of "defects". There's a ton of little things like that in the contract though. About the only consolation is that since it is being built as a tenant fit out, they're usually much quicker turnover with less delays, but I can't rely on chance here.

Maybe a simple revision to clearly define "trade damage" would suffice. I've just never seen a contract to set end date as defined by "grand opening". Seems far too arbitrary and open to misinterpretation.

I wouldn't worry too much about it personally. I can't see too much actual "defect" happening within 2 years or ever regardless.. most of the time its wear and tear.. Is this interior or Exterior btw?

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stelzerpaintinginc.

Discussion Starter · #5 · 28 d ago

finishesbykevyn said:
I wouldn't worry too much about it personally. I can't see too much actual "defect" happening within 2 years or ever regardless.. most of the time its wear and tear.. Is this interior or Exterior btw?

Both interior and exterior. My concern for wanting to define it is to insure I'm not gonna keep going back to fix damages caused by other trades where the acting PM labels it as a "defect". I've seen it happen. It's a real thing.

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kmp

· #6 · 27 d ago

Every commercial contract I had was warranty the work from when the owner took possession of the property after all other trades were done not when they opened. I did an entry and two bathrooms of a shell building before the other tenant finishes had even started and got paid and 5 or so months got a call to go do touch up, 60 miles away, after the area had been used by everybody for months. I said I couldn't make it.

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RH

· #7 · 27 d ago

The grand opening part is the only thing I will comment on.

Seems that many places often open up and are functioning months before they have their “grand” opening. And of course that includes the setting up period which could result in a fair amount of associated damage with everything being brought in and readied for the soft opening.

Personally, I think it’s smart to nail down any ambiguities and get answers to your questions before you sign, because it will be pretty much impossible to do so afterwards.

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Woodco

· #8 · 27 d ago

I use the same wording on my contract. "defect" means bad material, or improper application. Not aesthetics. I also have a clause that they get one walkthrough under normal lighting to point out touch ups, to prevent them calling back six months later for a holiday.

Trade damage touch ups, and defects are very different things, practically, and legally. I wouldnt sweat it at all.

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futtyos

· #9 · 27 d ago

stelzerpaintinginc. said:
Trying to sift through countless pages of legal jargon on a 58,000 sq.ft. tenant fit-out building, and most is fairly standard. One particular clause, the way it's written, would have me warrant against defects and workmanship for a period of 1 year after the grand opening versus one year after the completion of my work. Would that give you pause or is this something you've seen as well?

View attachment 115485

I'm doing the very thing I advise others not to do by asking painters for legal counsel, but I will have my attorney review everything as well. He still couldn't offer insight for what I'm asking about, which is whether or not you've experienced similar verbiage in contracts.

In that clause..."against defects and/or workmanship" it's the "defects" that bothers me, since damages from other trades could be easily thrown in that category.

I have no problem extending a warranty well beyond a year if asked, but I don't want to be on the hook for recurring damages once I've completed my work and everything has been signed off as completed. Who knows when the grand opening will be? Maybe it gets delayed due to unforeseen circumstances, theft, vandalism, etc. Maybe an investor backs out or a project manager gets Covid...you get my point.

I am not familiar with the type of contract you are speaking of. I used to do legal/paralegal research for friends as well as for an attorney. One source of materials I found to help in creating motions and other legal filings was to check out certain cases in my area, then go to the clerk of the court and pull those cases and read them through, marking pertinent pages for copying. Thousands of dollars of research can be had for 10-25 cents a page doing this.

Troy, I am sure that you have done searches online for copies of similar contracts and related materials. I just searched for "contractor template for tenant fit out contract" and a bunch of stuff came up. Without reading your whole contract I would be spinning my wheels, but if you do a similar search you might find some interesting things that you can go over with your attorney. My experience with attorneys is that if you can actually help them to help you, they will have a more friendly outlook towards you. I have experienced this several times over the years.

It would be instructive to see your whole contract in a redacted form.

futtyos

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Lighthouse Painting

· #10 · 21 d ago

I would ask for clarification. Then I would include a portion on the contract that specifies what “completed” means and who determines what is completed. Next I would have whomever this person is sign off on the completed work during different phases. Each unit, 1st coat, trim work, touch up’s etc… Extra tickets for doing a door or a room over again are absolutely essential for keeping careless trades from destroying your finished work. If the GC has signed off, they can’t expect you to redo it for free and you have proof that it was completed according to their standards. I strongly suggest you get that straight. I’ve spent weeks touching up after sloppy laborers, greasy handed electricians, and carpenters who couldn’t care less that the 30’ hallway you painted with green semi-gloss will have to be entirely repainted because the ran thier cart or gang box into the wall. Not to mention, the call backs from other trades. We’ve made an additional 15-40% on extras on enormous projects doing it this way. No one cares about your work, but you.

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PApaints

· #11 · 9 d ago

The wording is fine, trade damages aren't defects. Redline "from grand opening" and replace with "from substantial completion of painting work" and move on. If they push back and want from grand opening, really who cares. No real difference there. We write into our contracts that we do a single punch out, and we define the difference between punchout and touch-up. Touchup is 100% T&M once we've completed an area. Painters need to stop voluntarily getting screwed. If another trade drags their equipment across a tile floor or carpet and destroy it... does the flooring contractor come in and replace it as punchout? Hell no. If the stainless counter tops and refrigerators are banged up by the furniture movers, does the kitchen company install new equipment as punchout? Not a chance. I don't understand why other painters will come in and fix trade damages over and over for free. It blows my mind. We don't do it at all, paid for every minute of rework. Sorry, that was a bit of a tangent...but super important and ties in to protecting yourself.

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