Getting Paid: Contracts, Lien Rights and Collecting Fees

Transcription

1 Tennessee Association of Professional Surveyors 51 st Annual Conference and Exhibition March 7-9, 2019 Getting Paid: Contracts, Lien Rights and Collecting Fees Presented By Julie Byrd Ashworth Attorney at Law 554 Green Tree Cove, Suite 201A Collierville, TN Phone & Text: (901) Facsimile: (901) Website:

2 CONTRACTS Presented By Julie Byrd Ashworth Attorney at Law 554 Green Tree Cove, Suite 201A Collierville, TN Phone & Text: (901) Facsimile: (901) Website:

3 Company address Contact info Phone number (insert date) Client Client address Phone number Re: Proposal for boundary survey on (identify property) Price: Boundary survey, performed pursuant to the State of Tennessee Standards of Practice for property surveys, on the property described above. This proposal includes the following services: 1. Verification of property markers found and re-establishment of lost corners. 2. Location of permanent improvements to the property (buildings, fences, driveways, etc.). 3. Identification of encroachments (if any). 4. Determination of acreage. 5. Elevational contours at one (1) foot intervals (accurate to ½ interval). 6. Preparation of a map of survey depicting the results of the survey. This proposal does not include a title search. The information shall be based on the current recorded deed to the subject property. (list payment terms, e.g.: 50% of price due before work to be commenced, 50% on delivery of finished product or Payment due on delivery of finished product. List any additions to contract, additional fees owed for use of credit cards for payment. If you want to add terms, conditions, limitations, hourly rate, etc. list here or attach additional sheet. If you agree with this proposal, please indicate your acceptance by signing this notice to proceed provided below and return one copy to our office. Sincerely, Acceptance and Notice to Proceed: (your name, title) By: (name and signature of owner/officer) Date:

4 Your Firm Information Here Date Work Authorization / Contract In consideration of the matters described hereinafter, and of the mutual benefits and obligation set forth in this agreement, the parties (insert name of client) hereinafter referred to as client and (name of land surveyor) hereinafter referred to as surveyor agree as follows: Client authorizes (name of land surveyor) to begin work on a project involving construction services on (insert name/location of project) at a Fixed rate of _ (not including hourly charges for re-staking, if required), with the scope of services incorporated by reference, with the following terms and conditions. Any work performed for client outside the scope of work shall be billed at our Standard Hourly Rates. Estimated time to complete is about working days from start of work. Time to complete is only an estimate and can be affected many variables, including but not limited to, weather, cooperation of third parties, difficult terrain, equipment, acts of god and other factors beyond (name of land surveyor) s control. Client agrees to the following contractual terms and conditions: (name of land surveyor)will perform the quoted land surveying services for the Client with the following terms being part of the agreement to be executed. The hourly rate of (name of land surveyor), RLS is for any time other than stipulated above. Expenses such as copying, postage, long distance telephone and travel will be billed at actual cost with no mark-up (or cost plus %). Fees and expenses will be paid and received by (name of land surveyor) within ten (10) days of date of invoice. Client agrees to deposit with Surveyor the sum of $ as a retainer. Surveyor will apply its invoices against the retainer. Client agrees to replenish the retainer on a (insert how often) basis, as needed. If an invoice is not paid or the retainer is not replenished within ten (10) days of date of invoice, that invoice and any other past due amounts will be paid from the retainer. Surveyor has no duty to continue providing services to Client if an invoice is not paid or sufficient retainer balance is not maintained. The unused portion of the retainer, if any, will be refunded to Client at the conclusion of this engagement. Should Surveyor hire an attorney to collect its fees, Client shall be responsible to pay all collection costs, including reasonable attorney's fees. The venue for any dispute related to this agreement shall be (name of location you will sue/be sued in) County, Tennessee. By its execution below, Client hereby accepts all of the foregoing terms and conditions: Client By: Client Date

5 Standard Hourly Rates 2-Man Field Crew 3-Man Field Crew GPS Field Crew Auto-cad Technician I Auto-cad Technician II Auto-cad Technician III Registered Land Surveyor Vehicle Mileage $ / hour $ / hour $ / hour $ / hour $ / hour $ / hour $ / hour $ / mile initial

6 (insert date) (name/address of client) Re: Professional service agreement for proposed (insert name/location of project) Dear Sir/Madam: Regarding your recent request for professional services, our firm proposes to provide you with (insert work to be performed) on the above referenced property. By way of this letter/contract, we are enclosing our proposal for Land Surveying services. Our Basic Services regarding these improvements shall be as follows: Scope of Land Surveying Services Construction Staking Please refer to attached proposal Compensation Our fee for the above referenced project shall be a lump sum of _ Any restaking, or staking outside of this proposal which is not required by actions of Land Surveyor shall be considered as extra to this contract and shall be billed according to our standard hourly rate, as shown on the attachment. Reimbursable expenses for printing, long distance telephone/fax calls, postage, and delivery charges incurred in connection with the Basic Services and Additional Services will be charged based on actual cost. We will bill you monthly for services and reimbursable expenses. The above financial arrangements are based on timely payment of your bills. The net amount is due upon receipt. A finance charge of 1 1/2 per month (18% per annum) will be charged on unpaid balances. You will be responsible for all legal fees and collection cost incurred in the attempt to collect this bill. Work will stop on all projects after 45 days if payment is not received or otherwise resolved. Any additional fees incurred by the use of credit card/online payment fees will be paid by the Client. If these terms and the terms of the attached General Provisions are acceptable to you, please have a responsible party sign below, and return one copy. Receipt of this copy shall be considered notice to proceed. This proposal is void unless received in this office within thirty (30) days from this date. Please feel free to call if you have any questions or need any additional information. Sincerely, (insert your name/title here) Proposal Accepted: (Signature & Date)

7 SURVEY SERVICES PRICE LIST CLASSIFICATION Principal Professional Land Surveyor Project manager Survey Technician V Survey Technician IV Survey Technician III Survey Technician II Survey Technician I Cad Technician Project Administrative Assistant DIRECT NON-LABOR Monuments (varying Styles) Printing/Reproduction Subcontractors Signage/Traffic Control Map Duplication 11 x 17 Map Duplication 18 x 24 Map Duplication 24" x 36 GPS Receiver Total Station Instrument Terrestrial LIDAR Instrument HOURLY RATE COSTS Direct Costs Plus % Direct Costs Plus % Direct Costs Plus % Direct Costs Plus % $ / sheet $ / sheet $ / sheet $ /hr. $ /hr. $ /hr.

8 (Date) Client Name [Company] Address Re: Property Location Dear Sir/Madam; This letter shall serve as a Letter of Engagement, whereby (name of Client), owner/authorized agent for the above referenced project, hereinafter referred to as Client, engages (name of land surveyor) hereinafter referred to as Surveyor, to perform land surveying services on the above described property (the Property). Execution of this letter will confirm acceptance and shall constitute an agreement between Client and (name of land surveyor). (name of land surveyor) will provide a Boundary and Topographic Survey of the Property which will include (description of services) verification of property markers found and re-establishment of lost corners, location of permanent improvements to the property (i.e. buildings, fences, driveways, etc.), identification of encroachments (if any), determination of acreage, elevational contours at one foot intervals (accurate to one half interval) and preparation of a map of survey depicting the results of the survey. The survey will meet all applicable provisions of the State of Tennessee s Standards of Practice for property surveys. (name of land surveyor) does not perform title searches. Information shall be based on the current recorded deed to the subject property. It is acknowledged that land surveying is a professional service and not an exact science, therefore our fee for services is estimated at $, subject to unforeseen circumstances or unexpected difficulties. The survey will be completed (time frame to complete) from the date of receipt of an executed copy of this agreement. Surveyor will make every reasonable effort to meet this schedule; however, this is not a guarantee. All invoices are due and payable within 15-days of receipt. A late fee of 1.50% per month will apply. In the event collection proceeding become necessary, Tennessee law will apply and Attorney s fees and cost of collection will be reimbursed to Surveyor. If unforeseen circumstances or unexpected difficulties are encountered, the Client will be consulted before Surveyor proceeds further. If additional services are deemed necessary, Surveyor will perform those services at an hourly rate of (insert hourly rate). Surveyor will only perform additional services with Client s written or verbal approval. This offer will expire if not executed within 15 days. Either party may terminate this agreement with or without cause. Upon termination, Surveyor will be reimbursed for services performed. This agreement contains no warranties either expressed or implied. Persons signing below certify that they have legal capacity as the individuals, representatives, and/or agents for the parties to this contract. Additionally, it is understood and agreed that the maximum liability of (name of land surveyor) with respect to or arising out of the obligations hereunder and any duty assumed relative to the obligations arising out of this Agreement, whether explicit, implicit, or contemplated, shall be limited to the amount the CLIENT agrees herein to pay (name of land surveyor) for services to be performed hereunder, and no default or breach of covenant or duty shall impose or subject (name of land surveyor) to a greater liability. Any addition costs for acceptance of online or credit card payments shall be paid by Client. Should you have any questions regarding this proposal please contact us at (telephone number). If you agree with this proposal, please indicate your acceptance by signing the notice to proceed provided below and return one copy to our office. Sincerely, (Your name and title) Acceptance & Notice To Proceed By: Name & Signature of Owner/Officer Date

9 AGREEMENT (name of land surveyor) will perform land surveying services for (name of client) on real property located at and commonly known as. The hourly rate of (name of land surveyor) is. Expenses such as copying, postage, long distance telephone and travel will be billed at actual cost with no mark-up. Fees and expenses will be paid within days of date of invoice. Client agrees to deposit with Surveyor the sum of Dollars ($ ) as a retainer. Surveyor will apply its monthly invoices against the retainer. Client agrees to replenish the retainer on a (time interval, e.g. weekly, bi-weekly, monthly) basis, as needed. If an invoice is not paid or the retainer is not replenished within thirty (30) days of date of invoice, that invoice and any other past due amounts will be paid from the retainer. Surveyor has no duty to continue providing services to Client if an invoice is not paid or sufficient retainer balance is not maintained. The unused portion of the retainer, if any, will be refunded to Client at the conclusion of this engagement. Should Surveyor hire an attorney to collect its fees, Client shall be responsible to pay all collection costs, including reasonable attorney s fees. The venue for any dispute related to this agreement shall be County, Tennessee. AGREED this day of 20. (name of land surveyor) (name of property owner)

10 Work Authorization / Contract In consideration of the matters described hereinafter, and of the mutual benefits and obligation set forth in this agreement, the parties, herein after referred to as client and (name of land surveyor) agree as follows: Client authorizes (name of land surveyor) to begin work on his/her project in preparation of, at a Fixed rate of (not including hourly charges for line stakes, if required), with the scope of services incorporated by reference, with the following terms and conditions. Any work performed for client outside the scope of work shall be billed at our Standard Hourly Rates. Estimated time to complete is about from start of work. Time to complete is only an estimate and can be affected many variables, including but not limited to, weather, cooperation of third parties, difficult terrain, equipment, acts of god and other factors beyond (name of land surveyor) s control. Client agrees to the following contractual terms and conditions: Reimbursable Expenses: Reimbursable expenses means expenses incurred by (name of land surveyor), such as expenses for transportation and subsistence, reproduction of extra drawings, reports, documents and similar project-related items. Transportation and subsistence will not be reimbursable for surveys within 30 miles of (name of land surveyor) s main office. Billings / Payments: Invoices for (name of land surveyor) services and expenses shall be submitted at (name of land surveyor) s option, either upon completion of each task or monthly. Invoices shall be paid within 14 calendar days of receipt of the invoice. The Client shall pay all costs of collection, late payment fees in the amount of ten percent per month, and reasonable attorney's fees incurred by (name of land surveyor) in connection with overdue invoices. A deposit of $ will be required. Ownership of Documents: All documents produced by (name of land surveyor) under this agreement shall remain the property of (name of land surveyor) and may not be used by the Client for any other endeavor without the written consent (name of land surveyor). Termination of Services: This agreement may be terminated by the Client or (name of land surveyor) upon 30 days written notice. In the event of termination, the Client shall pay (name of land surveyor) for all services rendered to the date of termination and reasonable termination expenses. Suspension of Performance: (name of land surveyor) shall have the option, to be exercised at its sole discretion, to suspend its performance under this Authorization during any period in which any invoice submitted to Client is not paid as defined above. Indemnification/Risk Allocation: The Client shall indemnify and hold harmless (name of land surveyor) and its personnel from and against any and all claims, damages, losses and expenses (including reasonable attorney s fees) in whole or in part by the negligent act or omission, intentional wrongdoing, and/or strict liability of the Client. The total liability of (name of land surveyor) to Client and anyone claiming by, through or under Client, arising from (name of land surveyor) services will not exceed the total compensation received by (name of land surveyor) under this agreement. Payment of Attorney s fees and cost of collection: In the event of a breach of any of the terms and conditions of this Work Authorization by the Client, the undersigned party does hereby agree that (name of land surveyor) shall be entitled to all costs and expenses, including, but not limited to, reasonable attorneys fees with the minimum fee being the greater of one third (1/3) of the outstanding Page 1 Initials

11 balance or $, that are incurred to enforce such terms and provisions, including any and all costs and fees, including but not limited to, time spent by (name of land surveyor), incurred to collect any amounts owed pursuant to the Work Authorization and/or any invoices submitted pursuant thereto. In addition, the Client authorizes (name of land surveyor) to file a lien upon the subject property for any unpaid amounts due (name of land surveyor). By its execution below, Client hereby accepts all of the foregoing terms and conditions: Land Surveyor (name, title) Date: Client By: Date: GUARANTY FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the undersigned ( Guarantor ), guarantees the payment by Client to (name of land surveyor) its successors and assigns, of all sums due or becoming due or becoming due under the forgoing Work Authorization/ Contract ( Contract ) and the full performance of all other obligations of Client provided thereunder. This Guaranty is continuing, absolute, and complete, and acceptance and notice of acceptance hereof by Client and (name of land surveyor) are therefore unnecessary and are hereby expressly waived by Guarantor. (name of land surveyor) may initiate enforcement of the Guarantee against the Guarantor without making prior demand or enforcement attempts upon Client. This Guaranty shall continue in force until the payment in full by the Client of all amounts due under the Contract, including any extensions or renewals thereof which may be made without notice to Guarantor. This Guaranty shall be construed in accordance with the laws of the State of Tennessee and enforceable under the jurisdiction of its Courts. By: Guaranty Date Page 2 Initials

12 Standard Hourly Rates 2-Man Field Crew 3-Man Field Crew GPS Field Crew Auto-cad Technician I Auto-cad Technician II Auto-cad Technician III Registered Land Surveyor Vehicle Mileage $ / hour $ / hour $ / hour $ / hour $ / hour $ / hour $ / hour $ / mile Page 3 Initials

13 LIENS Presented By Julie Byrd Ashworth Attorney at Law 554 Green Tree Cove, Suite 201A Collierville, TN Phone & Text: (901) Facsimile: (901) Website:

14 NOTICE OF LIEN I, (insert your company/individual name), being first duly sworn, says that he as the lien claimant, furnished either materials or performed certain work in furtherance of improvements at the request of the other party hereinafter described, in pursuit of certain contract with (insert name of owner/person with whom you contracted), the owner of the described real estate, and would provide notice of the following. 1. (first date labor performed) The first work or labor was performed, or the first of the material, services, equipment or machinery was furnished on the * day of *, 20*. 2. (last day labor performed) The last day of work or labor was performed or the last of the material, services, equipment, or machinery was furnished on the * day of *, 20*. 3. (amount owed) There is justly and truly due the lien claimant therefore from (insert name of owner/person with whom you contracted), the owner of the real estate, over and above all legal setoffs, the sum of spell out dollar amount ($xxx)) dollars, for which amount the lien claimant claims a lien under T.C.A , et seq. on the real property, of which (insert name of owner/person with whom you contracted) is or was the owner, which is described as follows: (insert legal description here) This the * day of *, 20*. (insert your name) (insert company name) Subscribed and sworn to before me on this the * day of *, 20* by said affiant. My Commission Expires: Notary Public The following information is not a part of this deed: Property Address: Name and Address of Property Owner: Mail Tax Notices To: (insert name and address of property owner here) Parcel ID #: Prepared By: Return To:

15 GETTING PAID Presented By Julie Byrd Ashworth Attorney at Law 554 Green Tree Cove, Suite 201A Collierville, TN Phone & Text: (901) Facsimile: (901) Website:

16 ON YOUR FIRM S LETTERHEAD YOU ARE HEREBY NOTIFIED THAT THIS COMMUNICATION IS FROM A CREDITOR, AND IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. (insert date) (insert mode of transmission e.g. U.S. Mail, Facsimile, Electronic Mail, Certified Mail-Return Receipt Requested, UPS, FedEx, etc.) Name and address Re: Collection of debt owed to Dear : Please be advised that I am attempting to collect on the outstanding bill owed to me in the amount of. Please resolve this matter within days of your receipt of this letter or I will be filing a lawsuit (optional) a copy of which is enclosed. In order to properly resolve this matter, you will need to pay the outstanding balance by the deadline set out above. It is my sincere hope that you will be able to resolve this mater amicably and immediately. Pursuant to the FDCPA, you will find certain Notices enclosed herein. Sincerely, (name, title) (insert initials of person dictating the letter followed by a / with the initials of the person who typed it) Enclosures

17 NOTICE Title 15 U.S.C. Section 1692(g) of the Fair Debt Collection Practices Act: You may have been previously advised of certain of the following items of information. They are being repeated here to insure you are aware of each item of information. Please be advised that you have thirty (30) days from receipt of the document to which this Notice is attached to dispute the validity of the debt (or any portion thereof), which is sought to be collected by (insert name of Creditor). Your failure to properly and timely give notice of any dispute will result in an assumption that the debt is valid. If you notify, in writing, (insert name of Creditor) within the thirty (30) day period that the debt, or any portion thereof, is disputed, verification of the debt and a copy of such verification will be obtained and mailed to you by (insert name of Creditor). EVEN THOUGH SUIT HAS BEEN FILED, YOU MAY STILL DISPUTE THE DEBT DURING THE ENTIRE THIRTY (30) DAY PERIOD. IF NECESSARY, (insert name of Creditor) WILL POSTPOINE ANY SCHEDULED HEARING TO ALLOW YOU TO DISPUTE THE DEBT. The Principal amount remaining on the debt, as well as the amount presently due is stated in the information contained in the attached letter. The name of the creditor to whom the debt is owed is in the attached letter. Unless, within thirty (30) days after you have received this notice, you dispute the validity of this debt, or any portion thereof, I will assume the debt to be valid. NOTE: The right to dispute this debt or to receive further information regarding this debt within the next thirty (30) days will not stop further efforts at collection during that time, nor is your obligation to pay the amount due before acceleration of the balance of the principle due deferred. If you wish to make arrangements to pay this debt, please contact (insert name of Creditor) immediately. This is an attempt to collect a debt that you owe (insert name of Creditor), and any information obtained will be used for that purpose. The person who has addressed this correspondence to you is acting as a debt collector in this mater. THIS IS IN ADDITION TO YOUR REMEDIES UNDER STATE LAW, BUT/AND WILL NOT STOP THE ISSUANCE OF PROCESS AND JUDGMENT BEING TAKEN IN LESS THAN THIRTY (30) DAYS IF THIS MATER IS NOT RESOLVED PRIOR TO SUIT BEING FILED. (insert information regarding how you want to/not to be contacted regarding questions regarding the debt to be collected this is just one sample statement) DO NOT CALL THIS OFFICE. DUE TO THE HEAVY LITIGATION DEMANS, I WILL NOT ACCEPT CALLS ON THIS MATTER. PLEASE SEND ALL QUESTIONS TO ME IN WRITING.

18 Telephone: (901) Ashworth Surveying 554 Green Tree Cove, Suite 201A Collierville, TN Electronic Mail: YOU ARE HEREBY NOTIFIED THAT THIS COMMUNICATION IS FROM A CREDITOR, AND IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. March 9, 2019 VIA U.S. Mail and Electronic Mail to: (901) Mr. and Mrs. Joe Jones 1234 Liberty Street Anytown, U.S.A Re: Collection of debt owed per contract of December 1, 2018 $ Dear Mr. and Mrs. Jones: Please be advised that I am attempting to collect on the outstanding bill owed to me in the amount of $ Please resolve this matter within 5 days of your receipt of this letter or I will be filing a lawsuit, a copy of which is enclosed. In order to properly resolve this matter, you will need to pay the outstanding balance by the deadline set out above. It is my sincere hope that you will be able to resolve this mater amicably and immediately. Pursuant to the FDCPA, you will find certain Notices enclosed herein. Sincerely, John W. Ashworth, III, R.L.S. Ashworth Surveying JWA/jba Enclosures