Hard Rock Clause

When I was first constructing pole buildings, I found out the hard way why it is essential to have a clause in my agreements which covered the unknown – also known as “what you can’t see below the surface”.

rock clauseIn my case, we had contracted to build a 36 foot wide by 60 foot long horse stall barn – so there was a plethora of holes to be dug. Depending upon which hole we were at, 12 to 18 inches below the surface we hit a huge shelf of granite. Under the entire building!

After five days of renting an excavator with a ram hoe attachment, we finally got the holes dug, as well as losing any profits we ever anticipated making on the project!

What got me onto this subject is a recent project Hansen Pole Buildings supplied for Wallace Brothers Construction, Inc. (https://www.hansenpolebuildings.com/builders/portland-or-contractor.php). Ritchie Wallace was concerned about hitting rock at the site, and we asked him if he had a “hard rock clause” in his agreement with his client – which he did.

A fair hard rock clause covers both parties. It allows the builder to recoup extraordinary expenses due to one thing which cannot be controlled – what is underground. It also keeps new building owners from being taken advantage unfairly.

Granted, it has been 15 years since I was building, but for the benefit of all concerned, I will share the language we used:

“Purchaser shall absorb all costs incurred from unknown conditions such as rock removal, poor digging conditions, or poor soil bearing capacity; including but not limited to jackhammer, backhoe or auger rental (plus delivery and operator charges), sonotubes (plus delivery and installation) or dynamiting.”

“Seller’s price allots a maximum average of 30 person-minutes per column hole for hand-digging or 10 equipment minutes per column for auguring, with excess time to be paid for by Purchaser at a rate of $90 per person hour, or every portion thereof, for all office or administrative time and $60 per hour for project managers, superintendents, carpenters, laborers, etc.”

Weirdly enough, we never had to charge any client under this hard rock clause – as the few rare instances where issues came up, the clients always opted to take care of the issues themselves!

Whether a pole building contractor, or hiring one, I strongly encourage making certain this possibility is one which is negotiated in advance.

Just like the adage, “good fences make good neighbors”, a fairly written contract makes for good times between builders and building owners. When in doubt, get it in writing

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