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Richard
Richard, Attorney
Category: Legal
Satisfied Customers: 44431
Experience:  Attorney with 29 years of experience.
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I recently moved my practice. The contractor and architect

Customer Question

I recently moved my practice. The contractor and architect knew my budget was $300k. There were countless delays.we opened 2 months behind schedule. About three weeks ago my contractor tells me we are 100k over budget. Services already done. Items already bought. Do I have any legal recourse on this... I have a line on credit which will be used to the max if I have to pay this. Any advise?
Submitted: 9 months ago.
Category: Legal
Expert:  Richard replied 9 months ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.


Good afternoon. Can you tell me about your contract with the contractor? Did you have a fixed price contract? Thanks.
Customer: replied 9 months ago.
Do be honest, I am not sure . I don't believe so...it is at my office and I have not seen it now for 5 months so I can't remember .
Expert:  Richard replied 9 months ago.
Thanks for following up. Would it be possible to take a look at it tomorrow and then get back to me to let me know what it says in various areas? I want to be able to provide you complete and accurate information, and I really can't do that without a bit more information.
Customer: replied 9 months ago.
I can likely get it to you by Friday. How do I get back in touch with you. I am going to check and see if I had it scanned into my computer so may get to you sooner.
Expert:  Richard replied 9 months ago.
No worries....when you do get it, you can simply come back to this thread. You can also bookmark me: http://www.justanswer.com/law/expert-legalbeacon/
Customer: replied 9 months ago.
Thank you.. Will do thank you


Expert:  Richard replied 9 months ago.
You're welcome....I look forward to hearing from you when you're ready! Have a great evening!
Customer: replied 9 months ago.
You too
Expert:  Richard replied 9 months ago.
Thank you! :)
Customer: replied 9 months ago.
Found it! How do I upload it!
Expert:  Richard replied 9 months ago.
You can either paste it into this forum or post it somewhere on the internet and give me the link.
Customer: replied 9 months ago.
Ok...think copy will work

Fully Insured​​​​​​​​​ Brian P. Michaud
​​
​​Encompass
​​ Contracting, LLC.










____________________________________________________________________________________________________________

P.O. Box 862 · Windsor Locks, CT 06096 Office (XXX) XXX-XXXX · Fax (XXX) XXX-XXXX

Construction & Remodeling
Date:​1/15/2013
Contract#: ​VPBO01152013

Name:​​Visual Perceptions, llc / Catherine Ferentini​​​
Address: ​44 Fenn Dr
City:​​Newington​​State:​​CT​​Zip: 06111
Phone:​XXX-XXX-XXXX​​Work Phone:
I. PARTIES
This contract (hereinafter referred to as "Agreement") is made and entered into on this _16th__day of January ,2013 , by and between Visual Perceptions Eyecare, llc / Catherine Ferentini, (hereinafter referred to as "Owner"); and Encompass Contracting, llc, (hereinafter referred to as "Contractor"). In consideration of the mutual promises contained herein, Contractor agrees to perform the following work:
II. GENERAL SCOPE OF WORK DESCRIPTION
Architectural/Engineering, design, construction, supervision and furnishing services of the new build out space on Fenn Road, in Newington (Stop and Shop Plaza). 3860 s.f. of new space to be designed and constructed for the operation of Visual Perceptions to conduct day to day business.
Architectural/Engineering Services/Design; The plans will include all engineering for electrical, HVAC and plumbing. The Architectural services will include wall placement, floor plan design, finishes (Floor to ceiling, front to back).
Construction; That will include the execution of contracts, adhering to time schedules, vetting of contractors, collection of insurance certificates and verifying of the invoices due. The construction will be built to the plans provided by architect. Any changes past that by the own will incur additional costs. Finishes will be per plans also. Construction will consist of; framing, insulation, electrical, HVAC, sprinkler system, drywall, ceiling, flooring, paint, doors, demolition and disposal and plumbing. Furnishings; The final finishes of furniture (fixed and movable), including, but not limited to; chairs, desks, displays, tables and seating areas.
OPTIONS:
(Additional Scope of Work page(s) attached: _Yes _No)
LUMP SUM PRICE FOR ALL WORK ABOVE: ​$ 305,355.00
III. GENERAL CONDITIONS FOR THE AGREEMENT ABOVE
A. EXCLUSIONS
This Agreement does not include labor or materials for the following work (unless Owner selects one of these items as an Additional Alternate):
1. PROJECT SPECIFIC EXCLUSIONS:

2. STANDARD EXCLUSIONS: Unless specifically included in the "General Scope of Work" section above, this Agreement does not include labor or materials for the following work: Plans, engineering fees, dumping fees, town or governmental permits and fees of any kind. Testing, removal and disposal of any materials containing asbestos (or any other hazardous material as defined by the EPA). Custom milling of any wood for use in project. Moving Owner's property around the site. Labor or materials required to repair or replace any Owner-supplied materials. Repair of concealed underground utilities not located on prints or physically staked out by Owner which are damaged during construction. Surveying that may be required to establish accurate property boundaries for setback purposes (fences and old stakes may not be located on actual property lines). Final construction cleaning (Contractor will leave site in "broom swept" condition). Landscaping and irrigation work of any kind. Temporary sanitation, power, or fencing. Removal of soils under house in order to obtain 18 inches (or code-required height) of clear space between bottom of joists and soil. Removal of filled ground or rock or any other materials not removable by ordinary hand tools (unless heavy equipment is specified in Scope of Work section above), correction of existing out-of-plumb or out-of-level conditions in existing structure. Correction of concealed substandard framing. Rerouting/removal of vents, pipes, ducts, structural members, wiring or conduits, steel mesh which may be discovered in the removal of walls or the cutting of openings in walls. Removal and replacement of existing rot or insect infestation. Failure of surrounding part of existing structure, despite Contractor's good faith efforts to minimize damage, such as plaster or drywall cracking and popped nails in adjacent rooms, or blockage of pipes or plumbing fixtures caused by loosened rust within pipes. Construction. of continuously level foundation around structure (if It is sloped more than 6 Inches from front to back or side to side, Contractor will step the foundation in accordance with the slope of the lot). Exact matching of existing finishes. Public or private utility connection fees. Repair of damage to roadways, driveways, or sidewalks that could occur when construction equipment and vehicles are being used in normal course of construction.



B. DATE OF WORK COMMENCEMENT AND SUBTANTIAL COMPLETION


Commence work: ​1/16/2013​ Construction time through substantial
completion: Approximately​8___ to__10 _weeks/months, not including
delays and adjustments for delays caused by: inclement weather, accidents
additional time required for performance of Change Order work (as specified in each Change Order), delays caused by Owner, and other delays unavoidable or
beyond the control of the Contractor.

C. CHANGE ORDERS: CONCEALED CONDITIONS, ADDITIONAL WORK, AND CHANGES IN THE WORK

1. CONCEALED CONDITIONS: This Agreement is based solely on the observations Contractor was able to make with the structure in its current condition at the time this Agreement was bid. If additional concealed conditions are discovered once work has commenced which were not visible at the time this proposal was bid, Contractor will stop work and point out these unforeseen concealed conditions to Owner so that Owner and Contractor can execute a Change Order for any Additional Work.

2. CHANGES IN THE WORK: During the course of the project, Owner may order changes in the work (both additions and deletions). The cost of these changes will be determined by the Contractor and the cost of this Additional Work will be added to Contractor's profit and overhead at the rate of 40 % in order to arrive at the net amount of any Additional Change Order Work.

Contractor to supervise, coordinate, and charge 40% profit and overhead on Owner's separate Subcontractors who are working on site at same time as Contractor. Contractor's profit and overhead, and any supervisory labor will not be credited back to Owner with any deductive Change Orders (work deleted from Agreement by Owner).

3. DEVIATION FROM SCOPE OF WORK: Any alteration or deviation from
the Scope of Work referred to in the Contract Documents involving extra costs of materials or labor (including any overage on ALLOWANCE work) will be executed upon a written Change Order issued by Contractor and should be signed by Contractor and Owner prior to the commencement of Additional Work by the Contractor. This Change Order will become an extra charge over and above the lump Sum Price referred to at the beginning of this Agreement.

4. CHANGES REQUIRED BY PLAN CHECKERS OR FIELD INSPECTORS: Any increase in the Scope of Work set forth in these Contract Documents which is required by plan checkers or field inspectors with city or county building/planning departments will be treated as Additional Work to this Agreement for which the Contractor will issue a Change Order.
5. RATES CHARGED FOR ALLOWANCE-ONLY AND TIME-AND- MATERIALS WORK: Journeyman Carpenter $55.00 per hour; Apprentice Carpenter: $47.50per hour; laborer: $42.50per hour; Contractor: $55.00 per hour; Subcontractor: Amount charged by Subcontractor. Note: Contractor will charge for profit and overhead at the rate of 40% on all work performed on a Time-and-Materials basis (on both materials and labor rates set forth in this paragraph) and on all costs that exceed specifically stated ALLOWANCE estimates in the Agreement.

D. PAYMENT SCHEDULE AND PAYMENT TERMS

1. PAYMENT SCHEDULE: ​As discussed

2. PAYMENT OF CHANGE ORDERS: Payment for each Change Order is due upon completion of Change Order work and submittal of invoice by Contractor.

3. ADDITIONAL PAYMENTS FOR ALLOWANCE WORK AND RELATED CREDITS: Payment for work designated in the Agreement as ALLOWANCE work has been initially factored into the Lump Sum Price and Payment Schedule set forth in this Agreement. If the actual cost of the ALLOWANCE work exceeds the line item ALLOWANCE amount in the Agreement, the difference between the cost and the line item ALLOWANCE amount stated in the Agreement will be written up by Contractor as a Change Order subject to Contractor's profit and overhead at the rate of 40%.

If the cost of the ALLOWANCE work is less than the ALLOWANCE line item amount listed in the Agreement, a credit will be issued to Owner after all billings related to this particular line item ALLOWANCE work have been
received by Contractor. This credit will be applied toward the final payment owing under the Agreement. Contractor profit and overhead and any
supervisory labor will not be credited back to Owner for ALLOWANCE work.



4. HOLD BACK FROM FINAL PAYMENT FOR PUNCH LIST WORK: At time of making the final contract payment, Owner may hold back 150% of the value of all Punch List work. Owner and Contractor will place a fair and reasonable
value on each Punch List item at time of Punch List walk-through with Owner. Contractor and Owner will then execute the Punch List form. This 150% hold back for Punch List work assures Owner that all Punch List work will be completed by Contractor in a timely manner.

5. PAYMENT FOR COMPLETED PUNCH LIST WORK: Payment for
completed Punch List items is due and payable upon submittal of invoice for those completed items, even though entire Punch List is not completed.

6. INTEREST CHARGES: Interest in the amount of 1- 1/2% per month will
be charged on all late payments under this Agreement. "Late Payments" are defined as any payment not received within 30 days of receipt of invoice from Contractor.

E.WARRANTY

Contractor provides a limited warranty on all Contractor- and Subcontractor- supplied labor and materials used in this project for a period of one year following substantial completion of all work.

No warranty is provided by Contractor on any materials furnished by the Owner
for installation. No warranty is provided on any existing materials that are moved and/or reinstalled by the Contractor within the dwelling (including any warranty that existing/used materials will not be damaged during the removal and
reinstallation process). One year after substantial completion of the project, the Owner's sole remedy (for materials and labor) on all materials that are covered by a manufacturer's warranty is strictly with the manufacturer, not with the Contractor.

Repair of the following items is specifically excluded from Contractor's warranty: Damages resulting from lack of Owner maintenance; damages resulting from
Owner abuse or ordinary wear and tear; deviations that arise such as the minor cracking of concrete, stucco and plaster; minor stress fractures in drywall due to the curing of lumber; warping and deflection of wood; shrinking/cracking of grouts and caulking; fading of paints and finishes exposed to sunlight.
THE EXPRESS WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. THIS LIMITED WARRANTY EXCLUDES CONSEQUENTIAL AND INCIDENTAL DAMAGES AND LIMITS THE DURATION OF IMPLIED WARRANTIES TO THE FULLEST EXTENT PERMISSIBLE UNDER STATE AND FEDERAL LAW.

F. CONFLICT OF DOCUMENTS
If any conflict should arise between the plans, specifications, addenda to plans, and this Agreement, then the terms and conditions of this Agreement shall be controlling and binding upon the parties to this Agreement.
G. MATCHING EXISTING FINISHES
Where Contractor's work involves the "matching of existing finishes or
materials," Contractor will use his best efforts to match existing finishes and materials. However, an exact match is not guaranteed by Contractor due to
such factors as discoloration due to the aging process, difference in dye lots, and difficulty of exactly matching certain finishes, colors, and planes.

H. INSTALLATION OF OWNER-SUPPLIED FIXTURES AND MATERIALS: Contractor cannot warrant any Owner-Supplied materials or fixtures (whether new or used). If Owner-supplied fixtures or materials fail due to a defect in the materials or fixtures themselves, Contractor will charge for all labor and materials required to repair or replace both the defective materials or fixtures, and any surrounding work that is damaged by these defective materials or fixtures.

I. WORK STOPPAGE, TERMINATION OF CONTRACT FOR DEFAULT, AND INTEREST
Contractor shall have the right to stop all work on the project and keep the job idle if payments are not made to Contractor in accordance with the Payment Schedule in this Agreement, or if Owner repeatedly fails or refuses to furnish Contractor with access to the job site and for product selections or information necessary for the advancement of Contractor's work. Simultaneous with stopping work on the project, the Contractor must give Owner written notice of the nature of Owner's default and must also give the Owner a 14-day period in which to cure this default.

If work is stopped due to any of the above reasons (or for any other material breach of contract by Owner) for a period of 14 days, and the Owner has failed to take significant steps to cure his default, then Contractor may, without prejudicing any other remedies Contractor may have, give written notice of termination of the Agreement to Owner and demand payment for all completed work and materials ordered through the date of work stoppage, and any other loss sustained by Contractor, including Contractor's Profit and Overhead at the rate of 40 % on the balance of the incomplete work under the Agreement. Thereafter, Contractor is relieved from all other contractual duties, including all Punch List and warranty work.

J. DISPUTE RESOLUTION AND ATTORNEY'S FEES
Any controversy or claim arising out of or related to this Agreement involving an amount of less than $5,000 (or the maximum limit of the court) must be heard in the Small Claims Division of the Superior Court in the county where the Contractor's office is located. Any controversy or claim arising out of or related to this Agreement which is over the dollar limit of the Small Claims Court must be settled by binding arbitration administered by the American Arbitration Association in accordance with the Construction Industry Arbitration Rules. Judgment upon the award may be entered in any Court having jurisdiction thereof.
If controversy results in Contractor being off the job site in excess of 45 days, Contractor reserves the right to file a mechanics lien. The prevailing party in any legal proceeding related to this Agreement shall be entitled to payment of reasonable attorney's fees, costs, and expenses.

K. ENTIRE AGREEMENT, SEVERABILITY, AND MODIFICATION
This Agreement represents and contains the entire agreement between the parties. Prior discussions or verbal representations by the parties that are not contained in this Agreement are not a part of this Agreement. In the event that any provision of this Agreement is at any time held by a Court to be invalid or unenforceable, the parties agree that all other provisions of this Agreement will remain in full force and effect. Any future modification of this Agreement must be executed in writing in order to be valid and binding upon the parties.
L. ADDITIONAL LEGAL NOTICES REQUIRED BY STATE OR FEDERAL LAW

See page(s) attached: ​X​Yes ​​No

M. ADDITIONAL TERMS AND CONDITIONS


See page(s) attached: ​​Yes​​No

YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS
TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORAN
EXPLANATION OF THIS RIGHT. (SATURDAY IS A LEGAL BUSINESS DAY IN CONNECTICUT.) THIS SALE IS SUBJECT TO THE PROVISIONS OF THE HOME SOLICITATION SALES ACT AND THE HOME IMPROVEMENT ACT. THIS INSTRUMENT IS NOT NEGOTIABLE.
Work will not be begun until your right to cancel has expired and you have paid a deposit of One Thousand dollars ($1,000.00 ), unless this agreement provides otherwise.
(I/We) have read and understood, and I agree to, all the terms and conditions contained in the Agreement above.

Date: _______​ Encompass Contracting, llc, Representative​​​​
Date:​​ OWNER'S SIGNATURE ​​​​​​
Date:​​ OWNER'S SIGNATURE ​​​​​​

OFFICE COPY​​WORK COPY​​​CUSTOMER COPY
Expert:  Richard replied 9 months ago.
Thank you! Did you sign any Change Orders along the way?
Customer: replied 9 months ago.
I don't believe so
Expert:  Richard replied 9 months ago.
Thank you. In that case, the contractor is not going to be entitled to any more than the contract price of ​$ 305,355.00. If there were going to be additional charges, Section C requires there to have been change orders so that you would have had a notice of the change and the cost. Since you were not provided any of these to approve, the contractor cannot now, at the end of the job hit you with the additional charge of $100,000. The contractor is the expert and should have known the costs of construction. He entered into a fixed price contract and because he made a mistake, he bears that risk rather than you. He has no legal basis for charging this extra amount and you have no legal obligation to pay it.



Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces/stars so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
Customer: replied 9 months ago.
Many thanks ...I did not think that I had to. Many thanks again
Expert:  Richard replied 9 months ago.
You're welcome....it's been my pleasure to help out! Have a great evening!
Richard, Attorney
Category: Legal
Satisfied Customers: 44431
Experience: Attorney with 29 years of experience.
Richard and 18 other Legal Specialists are ready to help you
Expert:  Richard replied 9 months ago.
Thank you so much for the positive rating! I appreciate having had the opportunity to serve you! If I can be of assistance to you in the future, just look me up and I will be happy to help! For easy access, my bookmark is: http://www.justanswer.com/law/expert-legalbeacon/

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