Agreements – Changing the “Take It or Leave It” Format
Doug Staebler, Custom Concrete Company, Inc., Westfield, INIn previous articles, we looked at the growing use of Subcontractor agreements by builders. In addition to the typical clauses dealing with schedules, work defects, payment provisions, and other construction related matters, most of these agreements contain extremely potent indemnification clauses, which impose nearly unlimited liability on subcontractors. Most often, these agreements seem to be presented in a “take it, or leave it” format, and we often feel that we will jeopardize our chance to work for the customer if we refuse to sign the agreement as drafted. The reality is that there is usually significant opportunity to negotiate changes to the agreement, if the proper strategies are used. In this article, we will look at the key steps you can take to increase the chance of successfully securing the necessary changes to your customers’ agreements.
Before we begin, it’s important to understand certain realities that we must overcome to achieve the desired outcome. In most cases, the builder, or the person you are dealing with has not read the agreement, and has very little idea about what is in the agreement. It was probably provided by an insurance company, or the home office, with instructions to get it signed by every subcontractor. There is usually very little awareness of what is in the agreement, or how it affects subcontractors, and there will be little interest or willingness to get involved making changes to the agreement due to other more pressing tasks or responsibilities. Additionally, most other subcontractors have signed the agreement without expressing any objections to the agreement.
Given these factors, here are ten tactics that will help you negotiate the changes you need:
1. NEGOTIATE IN PERSON
If at all possible, avoid discussing this matter by telephone. Our objective is to convey key issues and concerns, and to gain a willingness to work together. This is difficult to do by telephone, but in person meetings will create a far better opportunity to work together with your customer.
2. UNDERSCORE YOUR COMMITMENT TO THE PROJECT
Explain that you intend to honor the agreement completely, and accordingly, want to make sure the agreement is workable. Your competitors may have no intention of complying with the agreement, and not be around long enough to back up what they agree to. Your customer should be glad to see that you will be around to back up your commitments and stand behind your work.
3. EXPLAIN THE REASONS BEHIND REQUESTED CHANGES
The person you are dealing with probably does not understand the issues involved. It may be necessary to explain the issues involved, and how unintended consequences could result from the proposed agreement.
4. DON’T OVER-NEGOTIATE
Pick the three or four most important items. There is usually a limit to how many changes you can secure. Focus on the most important issues, the ones that could create the most severe problems in your business.
5. LET ROUTINE THINGS SORT THEMSELVES OUT IN THE FIELD
In general, most construction details work themselves out as they occur in the field. In many instances, contractual provisions are not followed in the field. Ultimately, your ability to create a long-term customer will depend on finding workable solutions in the field, regardless of what is in the contract.
6. OFFER PROPOSED MODIFICATIONS
It is essential to offer the solution. Your chances of success are greatly reduced if its up to the customer to draft modifications or otherwise find the solution. If at all possible, propose a draft containing alternative language in the form of an addendum that can be agreed upon, and simply added to the original agreement.
7. REDUCE OR ELIMINATE THE NEED FOR AN ATTORNEY
Your customer is probably not interested in using his attorney to draft alternative agreements to address your concerns. Your chances are much better if you can provide the solution that does not require additional involvement of your customer’s attorney.
8. BE AVAILABLE TO DISCUSS PROPOSED CHANGES
It may be necessary to explain proposed modifications to an attorney, insurance agent, or home office personnel. If so, be prepared, and offer a clear concise reason for the proposed changes.
9. EXPLAIN THAT OTHERS HAVE AGREED TO THE SAME CHANGES
It’s amazing how much easier it is to get cooperation from customers, if they think others are doing the same thing. Explain that other customers have agreed to essentially similar changes. This is especially helpful if the other builder is a large, well known builder.
10. BE PREPARED
It is important to understand the issues involved. You will likely see the same clauses and issues in most of these agreements. Designate someone in your organization to learn about these agreements, and be able to discuss them intelligently with customers. Get training on the important issues from your attorney. Have substitute language or addendums prepared ahead of time ready for use when the need arises.
Following these key strategies will greatly increase your chances of securing important changes to the agreement. Most builders, at some level, will appreciate your concerns, and your commitment to abide by the agreement you are signing. The effort you take to secure these changes could save you some day from litigation that could threaten the survival of your business.
W.O.C. 2005 Wrap-up
Like most of you, I have had some experience with the World of Concrete shows. I’ll date myself by admitting that I attended my first in Dallas 1981, and later in Atlanta 1989. So with a perspective that spans 24 years, I can tell you they just keep getting more and more amazing.
This year’s show was no exception. It looked to me like attendance was an all-time high, the exhibitors had the proper gleam in their eyes, and the aisles were full of great gadgets, equipment and innovative ideas.
I have always said that a person only has to come home with one good idea to pay for the trip, (some heavy gamblers may need two or three ideas) I always come home with several.
By far, the best part is getting to spend time with all of you, getting to know you better, and getting the opportunity to discuss our ideas, problems, failures and most of all… our victories. If a contractor can’t sit down and talk to two or three people in the same business, and not come away with a few good ideas, he just isn’t paying attention. I enjoyed working the booth for just that reason. The CFA party at the Hofbrauhaus Las Vegas was a great event by anyone’s standard. The overwhelming attendance challenged the hall capacity and made finding a seat and carrying on a conversation a bit tricky, but illustrated the success of our organization. Most attendees loved it, but some had constructive complaints. For those that didn’t like the format, the crowd, or the German food, we apologize – we will find a bigger, quieter room next year. My hat goes off to the CFA staff – I don’t know how you could do a better job at planning these events given that you must make decisions a year in advance. Thanks for all of your hard work.
We had full intention of thanking our many sponsors at the Party. Unfortunately the Banners arrived after most of the guests, and we could never get you to hear us on the P.A system.
Terry Lavy, CFA President, Lavy Concrete Construction Inc. terry@lavyconcrete.comEducate Your Builders
NAHB UNIVERSITY OF HOUSING UNVEILS CONCRETE FOUNDATIONS COURSE
The National Association of Home Builders (NAHB) is a powerful force in the business of home building. Most home builders in the United States belong and participate in their association and most of the members of CFA work with builders who are part of the NAHB. The NAHB, like the CFA, provides its members with a host of benefits including networking opportunities, publications, and educational opportunities. Among the educational offering are seminars in Foundation Drainage and Waterproofing, and Concrete Housing with Removable, Reusable Forms. These courses were offered at the recent meeting of the NAHB in Orlando, Florida, thanks to the participation of the CFA and CHC in the Building Systems Council of the NAHB. Brent Anderson presented a well attended and received seminar on foundation drainage and waterproofing and I presented the course on concrete homes.
The real opportunity for the CFA and its members to educate builders about concrete foundations, however, is through the new course offered through the NAHB University of Housing. The course is called “Cast-in-Place Concrete Foundations.” The University of Housing is the primary source of the educational needs for NAHB members who are seeking to obtain continuing education. A course listed in their catalog gives the us access to the builders, as well as an excellent opportunity to educate them about foundations.
The pilot was offered in Kalamazoo, Michigan in mid-December and is ready for presentation through your local HBA. The half-day course, developed for the builder audience, covers a broad range of topics including soils, excavation, footings, foundation walls, concrete basics, waterproofing, backfilling, maintenance, and troubleshooting. The course must be sponsored by a local HBA and taught by an HBA approved instructor. We suggest you contact your local HBA and make them aware of the existence of the course.
We are encouraging anyone who wants to teach the course to complete the NAHB training process. In order to qualify as an instructor you must take a day-long “Train the Trainer” course offered by the NAHB and you must take the Foundation Course itself. Eight CFA members have completed the “Trainer” course and an additional ten will take it at the Regional Meeting in Minneapolis this April. Most of these “instructors” will take the “Foundation Course” in Minneapolis during the same period, thus completing their requirements to qualify. If you are interested in teaching the seminar, contact the CFA at 866-232-9255 or esauter@cfawalls.org and we will put you in touch with NAHB personnel.
Ed Sauter, Executive Director, CFA esauter@cfawalls.orgNAWIC Invites Nominations for 11th Annual Crystal Vision Awards Program
Celebrating the achievements of individuals with vision who helped to promote, expand and encourage to role of women in the construction industry.
The National Association of Women in Construction (NAWIC) is accepting nominations for its 11th annual Crystal Vision and Crystal Achievement Awards. The Crystal Vision Awards Program recognizes individuals for their outstanding achievement in advancing the role of women in the construction industry. Winners will be recognized at the Association’s 50th Anniversary Celebration and Convention, September 7-10, 2005, in Grapevine, Texas. The awards are given annually. The Crystal Vision Award goes to a nonmember of NAWIC, and the Crystal Achievement Award goes to a member of the Association.
“This award identifies and honors the men and women who see beyond the invisible barriers that impede the progress of women, especially in nontraditional fields,” says Susan Levy, found of the Crystal Vision Award and past NAWIC national president. “Nominees must demonstrate the courage to act on their vision by gradually breaking down those barriers through policy change, setting precedent and taking risks.”
Nominees for the Crystal Vision Awards may represent any of the various construction fields and include contractors, architects, engineers, suppliers, labor organizers, and trade association and government personnel. NAWIC also invites nominees from al employment levels including owners, executives, managers and agency chiefs. The NAWIC Office must receive the nominations on or before February 28, 2005.
ALL NOMINEES MUST MEET AT LEAST THREE OR MORE OF THE FOLLOWING CRITERIA:
1. Be in a position of authority to influence and/or make decisions beneficial to women in the construction industry.
2. Empower women I construction through company policy, legislation or organizational structure.
3. Actively promote the inclusion and/or advancement of women in construction.
4. Demonstrate leadership on behalf of women in construction.
5. Break barriers with a “first” for women in construction.
6. Act as a role model and/or mentor for women.
A panel of industry experts will select winners based on the award criteria. They are Doug Curtis, director of chapter development, Associated Builders & Contractors; Mike Holland, executive vice president, American Council for Construction Education; and Norbert W. Young, Jr., FAIA, president, McGraw-Hill Construction.
Award winners receive a complementary trip Grapevine, Texas, to accept their awards during the Crystal Vision Awards Gala held in their honor. Video portraits will also highlight the achievements of the two winners and their contributions to enhance the success of women in the construction industry.
An online copy of the application is available www.nawic.org. Applications should be sent upon completion to:
NAWIC, Attn: Crystal Vision Awards, 327 South Adams Street, Fort Worth, Texas 76104-1081.
Companies and organizations can support the importance of recognizing excellence in the construction industry by sponsoring the 2005 Crystal Vision Awards Program. To learn more about becoming a sponsor, please contact the NAWIC Office for more details. Sponsorship levels range from $1,000 to $5,000.
Founded in Fort Worth, Texas in 1955, NAWIC is an international association serving approximately 5,500 members in 184 chapters across the United States and Canada. NAWIC also has international affiliates in Australia, New Zealand, south Africa and the United Kingdom. For more information, please contact Marketing Communication Director Kara Roberson at 817-877-5551.
PCA has a New Tech Brief
The Portland Cement Association recently published a tech brief, Technology Brief: Concrete Basements, to inform the building industry and consumers of the value in having a concrete basement. IS313-Concrete Basements describes why basements are built with concrete, what quality construction practices to look for, and the various types of cement based systems available to build with.
The brief is designed in a single page format and written in a non-technical style. Sold in packs of 50. For more information contact CFA at 866-CFA-WALLS (232-9255).
Form-A-Drain: A Century of Innovations
Through innovation and creative product design, CertainTeed Corporation has helped shape the building products industry for more than 100 years. Founded in 1904 as General Roofing Company, its slogan “Quality Made Certain, Satisfaction Guaranteed” quickly inspired the name CertainTeed. Today, CertainTeed is a leading North American manufacturer of vinyl and fiber cement siding; vinyl and composite decking, railing, and fencing; vinyl windows; residential, commercial and mechanical insulation; residential and commercial roofing; pipe and foundation systems.
Headquartered in Valley Forge, Pennsylvania, CertainTeed is a Saint-Gobain company with approximately 7,000 employees and 40 manufacturing facilities throughout the U.S. The company had sales of approximately $2.3 billion in 2003. www.certainteed.com.
CERTAINTEED AND THE CFA
Certainteed is a world-class building materials supplier, and a strong believer in the importance and value of professional organizations such as CFA. As the manufacturer of the innovative FORM-A-DRAIN foundation forming/drainage system, which also provides for radon reduction, we are committed to bringing products to CFA members that make them more efficient and profitable. With Form-a-Drain, builders and contractors now have a revolutionary way to design a superior foundation system into their homes.
CertainTeed’s pioneering efforts have helped to establish Form-a-Drain as a nationally accepted foundation forming system, and a clear alternative to conventional techniques. Our entire organization, including Engineering, Research and Development, Manufacturing, Customer Service, and your local, knowledgeable Territory Manager, act as a team to service CFA member needs, with the focused goal of providing the best foundation forming systems available today.
CertainTeed recognizes CFA as the voice of the poured concrete wall industry in North America, and is proud of our association with this organization and of the commitment and vision of its members. We are a dedicated supporter of CFA professional development activities that help contractor members succeed and prosper. We’ve supported CFA through participation at the summer and winter meetings, as well as by working closely with many CFA members on various initiatives, including having Form-a-Drainspecs programmed into the Autocrete program. We are currently supporting a CFA new member prospecting initiative at the World of Concrete.
CertainTeed takes great pride in our contributions to the concrete foundations industry, and in our support of CFA. We consider our accomplishments of the past, including development of the innovative Form-a-Drain system, as a prelude to bold achievements in the future. At CertainTeed, we pledge to always stand by our slogan – Quality Made Certain – Satisfaction Guaranteed, as we continue to design and manufacture the most advanced, high-performance foundation forming systems available.
Cranes & Equipment: We’ve All Come a Long Way
By: Joan E. Ausbury, President Cranes & Equipment Corp. Peoria, IL
It was July 18, 1986, Kansas City, Missouri and the vision is still clear in my aging mind. The hole is dug, the footers are in, and there’s a busload of CFA members milling about the typical mounds of dirt around an excavation. The building site is on a slight hill in a wooded area. The entrance drive gently winds around the hill.
You could hear it coming and you could see the puffs of smoke from the exhaust as the truck works its way up the hill. It’s a tandem axle chassis full of concrete forms in baskets with a 35’ knuckleboom crane on the back. What a site!
The truck backs into a cleared area at which time the driver gets out, sets the outrigger booms and starts to unfold the goliath. It looks just like a giant arm booming up, knuckling under and picking 3,400 lb. loads of 34 – 3’ x 8’ aluminum panels off the truck and into the hole. All this in just a matter of minutes. The laborers are already in the hole unstrapping the panels and setting them in place as the crane repeats the process, emptying the truck of its load and providing enough forms to set a complete foundation.
Although I had sold my first crane into the poured concrete wall industry two years earlier (spring of 1984), this was the first mass demonstration of a form handling boom truck that I recall. Handling wall panels in baskets with a crane was in its infancy. The past two decades have brought about considerable changes: changes in the types/size of forms – how to handle 10’ forms and gang forms; building sites have changed – impossible to build on; foundation footprints have changed dramatically – no more rectangular homes.
It was in 1986 that we, The Supply House, Inc., became a member of the CFA. Our first year at the World of Concrete was 1988, albeit in the parking lot of the Las Vegas Hilton. 1992 brought about a name change to Cranes & Equipment Corp. but our dedication to this industry only intensified. As a specialist in providing form handling boom trucks and working closely with contractors and fellow CFA members, our business grew tremendously and in turn, I believe, has had a dramatic effect on handling forms and allowed contractors to grow.
Only by knowing and understanding the poured wall industry can one provide a reliable and safe product that will work in this industry. Networking with fellow CFA members during summer meetings and workshops has helped not only educate ourselves, but also given us the opportunity to inform its members about equipment that is available to assist them in their business.
And to think 20 years ago a crane with 35’ of reach was the cats meow. It’s not only job sites and the size of forms that have changed. Today one needs binoculars to see to the end of the boom tip with reaches pushing 100 feet. Where will it all end? I don’t know, but with constant communication with fellow CFA members, we’ll continue to pave the way for bigger and better solutions.
A total of 22 contractor member firms were represented at that 1986 sumer CFA meeting in Kansas City..
WE’VE ALL COME A LONG
WAY, HAVEN’T WE?
Western Forms: Working With the CFA to Help the Industry Grow
ABOUT WESTERN FORMS®
What started 50 years ago as a form tie producer has grown into a leading aluminum forming systems manufacturer. Today, Western Forms delivers high quality, high performance form panels, hardware, tools, and accessories. With unique technological innovations, Western Forms continues to improve its position as a leader, in the minds of both industry experts and the crew members that use its products daily all over the world.
Dedicated Research & Development, Engineering, and Technical Support departments strive to find new, better ways to work, produce, and perform. Backed by a professional Customer Service staff, nationwide sales representatives work directly with contractors and builders to get the most out of their investments and help their businesses grow.
From the manufacturing plant to the support staff, from distributors across the country to your local contacts, Western Forms stands behind its products, its people, and its promise to bring you the best aluminum forming systems for your projects.
WESTERN FORMS AND THE (CFA)
When Western Forms attended the first meeting of what would become the CFA in 1975, it knew from the beginning that the organization would get its full support and participation.
The poured wall industry benefits from professional leadership dedicated to keeping its members educated through providing both formal programs and the additional opportunities for business owners to come together and freely exchange ideas.
As a manufacturer, Western Forms supported the vision that the industry could improve through collective work. Any supplier, vendor, or manufacturer of a good product can deliver an important component, but contractors face more obstacles that can’t be met by one company alone. Beyond the act of pouring a wall, financial, regulatory, and personnel management concerns are all part of building a company. Qualified poured wall contractors with the knowledge to run successful businesses strengthen the overall concrete construction community and foster growth throughout the membership in North America.
With this in mind, Western Forms believes one of the most successful opportunities offered by the CFA is the annual round-table workshop at the summer meeting. This value-added service allows members from all aspects of busi ness management to share solutions about what makes a company remain competitive. From new ideas in materials handling to new production innovations, financial strategies to developing code changes, these discussions offer participants the chance to gain new insight and directly benefit from other members’ experience.
As the CFA looks to the future, Western Forms continues its commitment to working closely with members and leaders to help the industry grow. From a small start of 8-10 people with a common goal of making poured wall construction better for those in the next generation to the professional talent and 300+ membership today, Western Forms has seen first-hand what the CFA can accomplish.
More than an industry organization, the CFA fosters both business relationships and friendships. Western Forms is proud of its membership and its role in professional development as a result of its own dedication to the CFA.
Butler Construction: The Most Efficient on Efficiency
By: Talia J. Nelson, Marketing & Member Services
Butler Construction formed in 1978 by president, Daniel Butler, in Auburn, Indiana. A small family owned business, it expanded from pouring basements to include pouring large walls for machinery press prints and retaining wall work. It specializes in total site and foundation construction.
A CFA member since 1998, Butler Construction works hard to personalize each job and maintain friendly relationships with all their customers, while being as efficient as possible. Dan Butler explains, “ We pride ourselves with being the most efficient on efficiency and meeting time guidelines.”
One way they increase their efficiency is by using their Boom trucks to reduce the amount of labor used at job sites. They are able to get more done with less workers, which keeps both Butler Construction and their customers happy.
Purinton Builders, Inc.: On the Right Path
Talia J. Nelson, Marketing & Member Services
Purinton Builders, Inc of Granby, Connecticut, is the type of company that CFA was created for. As with many businesses, it started out as one man with the desire to succeed. Dennis Purinton, President of Purinton Builders, Inc., started the journey to success in the spring of 1984.
Originally, Purinton Builders, Inc. was a specialized company that did only unusual work, such as pouring eight-foot walls with wood forms. As the company prospered, Purinton was able to purchase aluminum forms, and currently pours nine-foot walls, still specialized work, which distinguishes them from their competitors. Plus, they also do production work in developments.
Forms were not the only equipment Purinton purchased over the years. Recently, he purchased a bigger Boom truck, the largest in the state, and he continues to update his aluminum panels and accessories. Purinton also purchased electronic layout equipment, a Geodimeter, which enables the company to produce at a larger volume with less labor. As most contractors know, you need good equipment in order to provide a good product and increase your productivity. The results were no different for Purinton Builders Inc. Purinton states, “Buying new equipment has doubled the growth of our foundation business in 12 months.”
However, good equipment is only a variable in the equation. Another variable is knowledge. Purinton keeps up on changes, trends, and problems in the concrete industry by attending CFA seminars at the Summer Meeting and other CFA events. “So much can be learned from attending the seminars and talking to other contractors there,” states Purinton.
Although Purinton is pleased with the changes in his business, he isn’t satisfied yet. On his list of future goals is building an office and shop. This will definitely be needed when he accomplishes his goal of doubling the size of his company in the next three years. If that isn’t enough, he is diligently working to organize a local chapter of the CFA. With the help of CFA headquarters, Purinton hopes to have the Northeastern Chapter running in 2005. He has a lot to do to accomplish these goals but he’s definitely on the right path.
To learn more about the Northeastern Chapter, other local chapters, or about starting a local chapter in your area – contact Local Chapter Coordinator, Talia Nelson, at toll free 866-CFA-WALLS or email tnelson@cfawalls.org.
