View Full Version : Clause for Underground "Surprises"??
I tried a search but couldn't find it. In the past we've had threads where people posted good clauses that covered excavating. Something like Contractor can't know what is buried & any costs incurred by unearthing stange stuff is client's responsibility etc. Can someobody help me word something like this, or point me to those past threads? Thanks.
04-24-2003, 04:21 AM
I have seen some of those responses. The last post I remember was about someone unearthing cable or wires with a bed edger. The post was asking for a clause and about four or five different ones were posted. One of the posts was from a grey-beard in here, it was a long contract and was one of the best I have ever seen I think it was in the lawn forum. Hope this helps.:confused:
04-24-2003, 12:57 PM
It may not be enough, nor have I had the need to test it, but here is what I use:
Buyer will be responsible for any and all losses, claims, or suits (including court costs and attorney's fees) to any person including third persons, arising out of the buyer's failure to inform the seller of the existence and location of any underground obstruction, property line easements, rights-of-way, or buyers rights with respect to any such obstructions or legal interests. Buyer is responsible for all underground obstructions; buried cables, irrigation, phone lines, etc. Contractor does not accept responsibility for damage to underground utilities. No warranty is expressed or implied. Buyer is responsible for watering and maintaining plants.
04-25-2003, 01:37 AM
We have a similar clause in all of our contracts. My attorney helped me write and revise this;
UNFORSEEN CIRCUMSTANCES. Prices within this proposal are firm unless there are unforeseen circumstances that result in delays or obstacles. An example of such would be if contractor begins excavating and finds large boulders, rebar, sewer drain, etc. If such circumstances arise contractor will notify client immediately with an evaluation and proposed change in price or work. If the obstacle deems the job unable to be completed or if client decides the cost to proceed is too prohibitive the client is responsible for labor costs incurred until that point and for any materials used that cannot be returned
This doesn't protect me from, say, running into a buried expolding tank or anything. But that wasn't my purpose for writing it. I just wanted to be covered in case we ran into obstacles that we couldn't have forseen before the job began. Because that's happened before and the customer just said, "Well, looks like that's your problem. You contracted to do this at this price and that's all I am paying..." (AzzHole!!) Well, we finished that job and immediately canned the guy (we were doing maintenance for him as well.) And the very next thing I did was come up with this clause.
Thank you Jim!!
That's exactly what I was talking about. Have seen & heard about jobs where contractors dug up cars, garbage, tire pits, big boulders, run into solid rock etc. etc. We've seen posts here like this too. Makes me think of recent thread here about digging up body, that surely incurred unexpected costs.
Conepile, that looks good too. Only difference is here we are responsible for not digging up utilities, not the customer. We have a number that we have to call before digging for a mark out, and then its on us to miss them, or on them if they miss mark.
04-25-2003, 04:25 PM
We are also responsible for utilities that we might hit, unless the "Call before you dig" marking service failed to mark it. However, they only mark to the house. After the meter, it belongs to the homeowner. This is especially prevalent with gas yard lanterns, which do not get marked. Irrigation , and other homeowner-added items (like electricity , gas, water, phone) that go to outbuildings will also be unmarked, unless you pay another service to locate them.
I understand what you were looking for though; unforseen or extrordinary issues that you wouldn't normally price out (explosives, for the 75 ton boulder that is in the way of your pipe puller).
04-25-2003, 11:05 PM
In our region the utility marking services do not mark the privately laid lines on a property such as auxillary wiring to a post light or tennis court. A clause is definitely in the contract for unseen obstacles.
04-26-2003, 05:44 AM
Good morning to all! Last year I bought a line locater to handle the underground utilities that the locating companies are not responsible for locating. It is also a great tool for locating any other line or pipe buried on site. I purchased it from a local electrical wholesaler for $1200.00. About the underground clause...last year I dug 30' across the back of a house, hit a Oak tree stump that had an addition of the house resting on it and turned a $50K job into a $975K job. One of the few times underground hidden objects helped the bottom line. The entire project was full of underground and hidden surprises. Good luck to all while digging.
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