Contract Breach??

slhalufska said:

What is the name of your state? FL
QUOTE]
----- CONTRACT WOULDN'T FIT------ HERE ISFIRST HALF

[B]Date: 3/20/2006

Your Do-it-yourself Pool System includes the following:
Trilogy Orion Pool – China Blue Color $13,237
Tax on above $794
• Delivery to property @ street (Rain or shine)
• Set, level, fill, back-fill, pipe, equipment piping, pressure test ready
Waive the travel fee for this job $3,400
• Engineered drawings for your permit work $included
• Customer Support including:
Operations manuals
Phone Support throughout installation
Freight Fayetteville, TN to Port Charlotte 750 miles @$2.00/mi $1,500
Total $18,931

Seller agrees to provide Buyer with pool and equipment as indicated above and in accordance with any additional terms as indicated above. Seller also warrants the pool in accordance with the conditions as specified on the following page.
Buyer agrees to the terms of payments as indicated below, and any additional terms and conditions indicated above and on the reverse side. Buyer acknowledges that the Buyer has read and understands and agrees to all the terms set forth herein, including additional specifications and terms, and the warranties and agreed conditions on the following pages.

PAYMENTS: $4,000 deposit due now. Deposit of $10,000 when shipping date is set. On delivery of pool the balance is due plus any other additional features purchased. (this payment via cashier, certified check or money order.)

_________________________________________________Date__________ _______________Date_____
BUYER(s) Signature SELLER Signature

(LIST OF EQUIPMENT EXCLUDED IN INTEREST IN THREAD SPACE)

WARRANTIES AND AGREED CONDITIONS

1. Contractor & Manufacturer’s Warranty: Seller warrants that all materials used in completing this installation contracted for herein will be new and of high quality and that all work will be done in a competent and workmanlike manner, allowing for reasonable/normal construction tolerances. Upon completion of the pool and performance of the agreement by the Buyer, Seller will deliver to the Buyer the manufacturers warranty certificates. Shipping damage to shell will be treated like a warranty issue. No claim may be filed under these warranties until Seller has been paid in full. The Buyer agrees to take all actions necessary in order to put and to keep the manufacturers warranty in full force and effect.

2. Access to Site: The Buyer will provide access to site for excavating equipment and trucks. Seller will use reasonable precautions but accepts no responsibility for damages to septic systems and other underground items, grass, shrubbery, trees, walks, driveways, patios, sprinklers, ruts, fences and the like. Buyer accepts responsibility for damages to adjacent property that Seller may have to cross or utilize during the project. Seller to have free access to site always without having to make access arrangements with the Buyer. If security gates or other means are in place the Seller and those working under the Seller will have access. Once a screen or fence is placed around the pool area the Seller will not be hindered access. If the Seller cannot access the site because of a locked security gate, screen room or fence, Buyer is subject to a $100/trip/vehicle trip charge, due immediately. Buyer recognizes that Seller is working in an outdoor environment with many external events to manage and that the Seller cannot complete the project on an appointment basis efficiently. Should the Buyer require that the project be done on an appointment basis, an additional charge of no less than $1,000 will apply.

3. Pool Location/Size/Features: The Buyer shall be responsible for the pool location being within the Buyer’s property lines and clear of setbacks and easements. Buyer may or may not have seen the model of pool being purchased. Buyer accepts all responsibility for the choice of the pool. Seller makes no warranty as to the size and shape of the pool and Buyer relies solely on the literature and engineering provided by manufacturers or from viewing pools in-ground. Buyer realizes that the Seller is to be held harmless.

4. Site Preparation/Improvements: Unless otherwise stated herein, site preparation, including removal or protection of trees or other vegetation, removal and replacement of fences, removal and replacement of pipe lines, which includes irrigation lines
(see Irrigation section below), septic system, fixing non-code or deficient electrical issues or running of electrical to pump of more than 10 feet, locating a switch away from pump, utility lines or other improvements affected by this construction and the costs associated with site preparation, shall be the sole responsibility of the Buyer. Extra costs for removal of excess dirt (defined as amounts beyond the excavation of the pool hole) or underground items not limited to stumps, debris, concrete, rock, etc. to be Buyer responsibility. Costs of shoring and engineering related to such to be Buyer responsibility. Seller will supervise all of the above Site Preparation/Improvements at no additional cost to Buyer.

5. Extras: Fill/Rock, If Needed: Buyer will pay cost for fill dirt or topsoil and placement and compaction of same where required for installation. Should soil conditions dictate, Buyer would pay cost of rock subsurface material or any piling system. Should retaining walls or other structures be necessary, the Buyer shall be solely responsible for their cost.

6. Screen/Fencing: The construction temporary fencing will be provided by the Buyer.

7. Water Seepage: The sealing off of water seepage due to high water table, (defined in this contract as any occurrence of water at or above the lowest grade of excavation), shall be paid by Buyer at cost. Seller will not be penalized by any work delay caused by a high water table or wet ground conditions or any other condition beyond the control of the Seller. If a high water table is encountered, this may cause the pool to settle out of level. Seller is not responsible for pool settling out of level.

8. Piping/Circulation: Seller warrants that the pool pump and filtration will work adequately for the pool and unless otherwise is noted has the sole discretion in the piping size and method, filter/pump placement and the brand and model .

9. Water: Buyer will supply the water to fill the pool. To minimize fill/backfill time Buyer is encouraged to have water provided by neighbors via hose or stored water supply. Fire hydrant filling is not generally recommended. Seller takes no responsibility for the quality of the water and Buyer is advised to have an analysis of the water done prior to the filling of the pool.

10. Finishing/Settling: Seller will backfill and return to machine grade. Buyer is responsibly for protection the grade via sod or other means. Seller will not be obligated to re-grade site due to the negligence of the Buyer to protect the grade. Pool site and water will be left in a clean condition at completion and instructions will be given on operation of equipment and water care. Seller will take all normal precautions to prevent settling but will not be responsible for minor cracks and minor settling to pool or decking. Seller will take all normal precautions, but will not be responsible for settling of pool or soil around pool. Buyer recognizes that minor cracks in concrete occur frequently and is to be expected in this type of construction.

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slhalufska said:

What is the name of your state? FL


I purchased a fiberglass pool through a licensed pool builder/installer. It was installed on 5/12/06 and is off 3.5" from shallow to deep end. At my insistence, the installers measured. They continued to fill, backfill & plumb. Spoke with owner by phone and email the day after the installers left (Sunday, 5/14/06). He assured me that he would return by 5/18 to check it out. I requested (via return email) that he void the last check and fax to me first thing Monday. I did not hear from him by 3 pm so I cancelled check to ensure pool was fixed. 5/16 he called to confirm he would be down 5/18. He also said he was going to the bank with the last 2 cks I gave the installers - He is not happy I cancelled final check. Stated he will not come back until paid. I stated I couldn't pay him until the job was completed. Offered the following options:

1. Have certified check for final payment held in escrow once pool was leveled & completed
2. Pay him in full, cash, when pool was leveled and completed
3. Welcome him earlier than Thursday to finish the job

After 2 wks, I finally gave in & sent final payment, certified check, which he signed for 11:07 am 5/26. Since that time, he has scheduled & rescheduled 3x. I have a sick feeling he's going to do this to me for a while to come. I have contacted the BBB to file a complaint, contacted the manufacturer & am in process of reviewing the procedure for arbitration with the NSPI (National Spa & Pool Institute), per the contract.

Questions:

A. Am I in breach for cancelling final payment?
B Do I have a right to demand satisfaction within 1 week of receiving final payment?
C. If he needs a crane (or any additional rental equip.) to correct the level, can he charge me back for that as well as any other additional charges for him to come back? (I already had to pay for cranes 2x, the first day - the pool was 4.5 hrs later than expected, boom was too short & it was too late to get another crane there)
D. Can he get away with scheduling a time to remedy the problems, then rescheduling several times? If so, how long can he do that?

Please help,
Sue
Port Charlotte, FL

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