Complaint: [redacted]
I am rejecting this response because:The response from the business does not provide me anything to accept or reject, except for the comments themselves. Accordingly, I reject the response. The business has not made an offer. Mr. [redacted] has clearly indicated multiple times in his last response that he rejects my offers. While Mr. [redacted] claims my perspective of the conversation is incorrect, he does not provide any verifiable proof other than stating his perspective of the conversation is different or claim that the contract matches his view of the conversation. The contract price, in comparing to the final proposal, proves that profit and overhead were not calculated against the subcontracted work. There is no recording or transcript of what was said during the proposal meeting or the physical conversations between myself and Mr. [redacted]. My supporting, corroborating evidence to support my claims of what was said during the proposal meeting is my wife who was present during the entire meeting; conversely, Mr. [redacted]'s employee that was in attendance during the proposal meeting did depart momentarily when the final proposal and contract were being generated. It is plausible that what was said at that meeting occurred while his employee was away...either way, there is no way to verifiably prove his employee was or was not present when Mr. [redacted] made his statement concerning profit and overhead as it applies to subcontracted work. The statements I have made, that Mr. [redacted] claims are irrelevant, were presented to show that Mr. [redacted] has made incorrect statements, such as his claim that I had in my possession the design work and detailed budget. Clearly, I do not as I already indicated. Claims that my statement is irrelevant is most possibly a defense mechanism to deflect attention that he did in-fact make a false claim. While Mr. [redacted] states he is not obligated to change the contract, simply put he can make changes...as he did when he charged profit and overhead in the change order to a sub-cost element for which he previously was not charging in the basic contract. Further, when he originally claimed he would not charge me for redesign of a future project, he later changed it to accommodate himself by stating he would charge me for the change order I requested due to requiring a redesign. As I already indicated, there would not be any redesign required. Consider that the original design was over designed, and my change was scaling it back (or a descope) whereby the original design for where the electrical work to be done is still supported by the original design. Hence, no requirement for charging or requirement for me to pay design fee again.We have not continuously tried to change things until it pleases us. When we signed the contract, while we believed at that time the total price was higher than expected we felt the designed project was acceptable. If we did not, we would not have signed the contract. Granted, we should have "slept on it" to ponder the decision more before signing and paying the initial 10%. The very next day we no longer felt comfortable with the project primarily based on the total price; it was truly more than we wanted to pay. That night when I called and spoke with Mr. [redacted], with a heavy heart I told him we no longer felt comfortable with the project and originally requested he refund us the 10% down payment we paid minus any additional reasonable costs incurred to date, while understanding the original deposit paid was non-refundable. Mr. [redacted] stated he "tends" to not return what was paid. So that I would not lose any benefit for what we paid, Mr. [redacted] stated he would apply what we paid to a future project, and that he would not charge for redesign. Following the logic that I not lose any benefit for what we paid, I agreed to think about what potential future project we may want KM Builders/Remodeling to do. As I have stated, my wife and I decided upon a future project which essentially descoped the original project. When I spoke with Mr. [redacted] about the revised project I informed him of what features we did not need nor require. But when I received the first change order, the deductions I indicated had not been removed as requested. Further, I realized that Mr. [redacted] was now charging profit and overhead against a sub-cost element for which he had not charged previously. When Mr. [redacted] finally provided the revised change order, the deductions I requested were finally removed but Mr. [redacted] was still charging profit and overhead where he was not before and he now wanted to charge me again for project redesign. I did not ask for any other changes to the actual work, and I remained consistent in regards to not paying for redesign (based on Mr. [redacted]'s offer to not charge me, which he later withdrew) and for not paying for profit and overhead that was not part of the original contract. I later acquiesced regarding the profit and overhead to the sub-cost element, which Mr. [redacted] essentially rejected in his lastest response. My statement of paying the remainder up front and the remainder upon satisfactory completion of the work (based on no charge for redesign) is to protect myself as a consumer to ensure the work performed is satisfactory. Otherwise, if I were to pay the remainder up front then I would have no viable leverage available to ensure the work is satisfactory (taking into consideration that KM Builders has not performed any physical work other than design). Mr. [redacted] has rejected this.On 3/3/15 I told Mr. [redacted] to put a hold on the project and to not incur any further costs. No actual, physical construction work has been performed to date. Mr. [redacted]'s refusal to refund me the down payment paid (minus $270 to cover the full cost of the $1,770 original design fee) for work not performed is in essence holding my down payment in hostage in either an attempt for me to seek a future project from KM Builders/Remodeling or as punishment for not wanting to continue the original project. Since I told Mr. [redacted] on 3/3/15 to put a hold on the project, I have not authorized any construction work to begin/resume. If physical construction work had been accomplished, I would rightfully pay for work performed; however, I do not intend to pay for work not performed. I understand that within the contract it states any down payment received or portion thereof is refundable only at the discretion of KM Remodeling. As it is KM Remodeling's discretion, Mr. [redacted] can choose to refund my down payment (minus $270 as I have offered to fully compensate for the contractually stated design fee). As no physical work has been performed beyond the design and no additional costs were incurred based on when the project was put on hold, I believe it would be reasonable for my down payment to be returned.In summation, Mr. [redacted] has rejected my offer as he indicated multiple times. The response is unsatisfactory.
Regards,
[redacted]
Complaint: [redacted]
I am rejecting this response because:At no time previously did [redacted] ever state he was willing to remove profit and overhead for the electrical portion of a much larger contract. As I stated in my initial complaint to the Revdex.com (Revdex.com) on 6/8/15, during the proposal meeting on 3/2/15 Mr. [redacted] explained to my wife and I that he does not charge profit and overhead on subcontracted costs. Neither at the proposal meeting nor during any other communication did Mr. [redacted] ever explain what he now claims regarding profit and overhead costs.After Mr. [redacted] provided me Change Order #1 on 4/20/15, I responded that same day. In my response I pointed out that Mr. [redacted] was now charging profit and overhead against the electrical option, contrary to the final proposal presented where profit and overhead did not include the electrical option and contrary to Mr. [redacted]’s explanation to my wife and I on 3/2/15 that he does not include subcontracted work in his profit and overhead calculations. Three weeks went by without any response/explanation from Mr. [redacted]; therefore, I followed up with him on 5/3/15. Two more weeks passed (for a total of five weeks) without any response from Mr. [redacted], so I followed up again on 5/25/15. Due to not receiving any response from Mr. [redacted] in five weeks, in my follow-up on 5/25/15 I requested my down payment be returned.On 5/28/15, five weeks after my response to Change Order #1 on 4/20/15, Mr. [redacted] finally responded along with providing Change Order #2. While he apologized for the “exceptional delay,” he stated he had gone through some personnel losses and gotten behind on multiple items. In his response, Mr. [redacted] claimed he did not feel that he was obligated to refund or even apply all the money I had given for the original project. He claimed he would not credit me for the design deposit since the project was not what was designed. He further stated I do not try to insist that he owe me anything unless part of the contract signed. In Mr. [redacted]’s response on 5/28/15, he did not provide any explanation claiming he removed profit and overhead for the electrical portion of a much larger contract. Other than his statement on 3/2/15 that he does not charge profit and overhead on subcontracted work, Mr. [redacted] did not provide any explanation, rational or otherwise, as to why profit and overhead did not include the electrical portion or why he should not return the down payment I’ve paid.In my response to Mr. [redacted] on 5/29/15, I again pointed out that the final proposal presented on 3/2/15 never had profit and overhead for the electrical portion and again reminded Mr. [redacted] of his explanation to my wife and I that same night (3/2/15) where he stated he does not include subcontracted costs in calculating his profit and overhead. I have offered to compensate Mr. [redacted] an additional $270 (to be added to the $1,500 deposit I had paid) to cover his design fees/costs of $1,770 as indicated in the proposal and subsequently in each change order provided. Otherwise, I requested Mr. [redacted] return my down payment ($3,589-$270 as just explained), for I had not received any work or benefit for this amount paid.On 6/2/15, Mr. [redacted] replied. In his response he stated the only reason I “did not see profit and o/h applied is because it was in a list of options.” He further stated that he explained to me “at the time of the proposal that any option selected would have these applied after the total number of options had been selected” by me. He explained that he didn’t know which ones (options) I wanted so he never calculated the o/h and profit at that time, and that he must add these fees to stay in business as they are necessary. However, this statement from Mr. [redacted] is factually incorrect for when reviewing the final presented proposal it is clear that profit and overhead does not include the electrical portion, and the final price in the proposal matches the final price in the original contract...which again is proof that Mr. [redacted] did not fully calculate the profit and overhead against all the selected options as he explained on 6/2/15 and is different than his explanation to my wife and I on 3/2/15 that he does not charge profit and overhead against work that is subcontracted. Additionally, no previous explanation exists from Mr. [redacted], verbally or written, that he was willing to not charge profit and overhead to the electrical portion of a much larger contract, but now he believed he should charge profit and overhead to the electrical portion due to the changes to the contract. He essentially added it without a proper and thorough explanation, and is going against his verbal word on 3/2/15.In his Revdex.com response dated 6/8/15, Mr. [redacted] claims he must cover his overhead and would like to make a profit on this job without using up all the funds needed to cover his costs for the design work. I point out he is still charging profit and overhead to his direct costs, which total $1,032.53. Profit and overhead calcucated against the current electrical portion from Change Order #2 is an additional $779.74. If Mr. [redacted] had calculated profit and overhead against the electrical portion of the original contract, the additional amount would have been $1,214.00. If it was a decision of Mr. [redacted]’s to not charge profit and overhead to the electrical portion due to it being subcontracted, as Mr. [redacted] explained to my wife and I, or in an effort to reduce overall costs (though he never explained this), that is a business decision made by Mr. [redacted] for which I should not have to burden due to the business decision made by Mr. [redacted]. If it was an error on he or his business’ part to not calculate the profit and overhead to the electrical portion when possibly they should have, that is a business error of no fault of my own for which I am also not responsible for it was not in the final proposal that was accepted nor in the original contract. If Mr. [redacted] made a mistake and failed to include profit and overhead against all selected options as he possibly should have from the onset, the contract between he and I would now be void, due to defective pricing, and he would no longer have a legally binding contract nor a basis to not return my paid deposit. A void contract would void all terms and conditions within the contract. Subsequently, if Mr. [redacted] rescinded the contract, as he stated he is considering in his Revdex.com response, then the down payment of $3,589 I’ve paid should be returned, especially since KM Builders has not done any further work to retain or earn payment, even on a rescinded contract. If KM Builders had done work beyond the project design (cost of $1,770 and mostly covered by my original deposit of $1,500), I would agree to pay reasonable, substantiated costs for the work done.That said, I’ve offered multiple times to compensate Mr. [redacted] for the total project design at the cost listed in the proposal of $1,770. Mr. [redacted] claims he does not want to use up all the funds needed to cover for the design work, yet he has not stated the amount for design work. The contractual amount for the design work, as indicated in the proposal, is $1,770. I’ve clearly indicated to him I would pay him that amount (additional $270 over the $1,500 originally paid for design). As for any other amount, I asked Mr. [redacted] to provide a certified list of costs incurred, of which Mr. [redacted] flat out refused to provide. Though I requested he not incur any additional costs on the project when I called him on 3/3/15 (the day after we signed the contract), Mr. [redacted] has refused to provide a certified list of cost incurred. Therefore, he has not provided a basis for any additional amount he should retain and not return to me, for work performed on this project beyond the design effort.Mr. [redacted] claims this project is entirely different than the original project that would require a whole new design effort, this is entirely correct. The electrical portion of the original contract as well as for the change order are almost identical; the running of the upgraded electrical line, running it into my garage, and installing the panel for both the original contract and the change order are the same. The original design, still in the possession of KM Builders, shows this. Therefore, for Mr. [redacted] to claim my original payment for design ($1,500) should not be credited to the change order since he has to do a completely different design is incorrect. There is no redesign effort for the work in the change order.Change Orders are changes to an existing contract; therefore, Mr. [redacted]’s claim of applying the down payment to a different contract is also not correct. Since the original contract was to build a garage extension with running upgraded electrical as the option to my existing garage, and the change order is running the same upgraded electrical to my existing garage, it does not constitute a new contract…rather, simply a change order to the original contract. If I were to completely cancel any work on my garage and seek KM Builders to do a totally different project, such as build an extension onto my house in a different location or maybe a guesthouse not connected to my house or garage, that would constitute a new contract.Mr. [redacted] has claimed I possess the design work and detailed budget, whereby he also claims he only provided to me if I paid the down payment. Another incorrect statement. No such statement was made the night of the proposal, and the down payment is actually part of the “Payment Schedule” as indicated in the contract and consists of “approximately 10% due upon acceptance.” The project designs were retained by KM Builders, which is in accordance with the contract which states “All plans, specifications, artwork, etc., contained within remains the sole property of KM REMODELING. This material may not be reused, distributed, or reproduced without the express written consent of KM REMODELING.” Therefore, per the contract and contrary to Mr. [redacted]’s Revdex.com response, I do not possess the design work and I am not allowed to use the design work to complete the building on my own. As for the detailed budget, no detailed budget was ever provided to me by KM Builders. While I have a copy of the original proposal, the final presented proposal, the contract (that does not contain cost breakdown), and Change Orders #1 and #2, no itemized list or detailed budget has been provided by Mr. [redacted] or KM Builders. As I indicated, I requested Mr. [redacted] to provide a certified list of costs incurred, for which he refused to provide. Even if he had provided me a certified list of costs incurred, that list would not provide me a detailed, itemized list to serve as a detailed budget for me to use on my own to complete the project.Just as he and I can discuss and potentially agree on changes to the original contract for work to be performed (through change orders) for which he and I must mutually agree upon, likewise the same holds true if Mr. [redacted] wants to later add profit and overhead elsewhere in the contract for which he previously did not include…it must be mutually agreed upon between the two parties.Verbal statements are binding agreements in the State of Texas. In this instance, those statements would be taken in conjunction with the contract. Mr. [redacted]’s verbal statements that are considered binding are: his explanation on 3/2/15 that he does not charge profit and overhead to his subcontracted work, and his statement on 3/3/15 that he would redesign and not charge me for (re)design for a future project and would apply my deposit toward a future project with KM Builders (this is also inline with KM Builder’s response to a Revdex.com compliant on or around 1/14/14 where KM Builders stated they would “be willing to apply the deposit of $5000 toward any room addition that we design and build onto their new home and not charge for the re-design work). There is a proven record that KM Builders has stated they would not charge for redesign and also apply the deposit paid.Copies of everything I have (proposal, final proposal, contract, change orders, and complete e-mail discussions) are readily available to provide to the Revdex.com to substantiate every statement I’ve made.Therefore, the reason I cannot understand what Mr. [redacted] states that regarding removing any profit and overhead for the electrical portion of a much larger contract is because he never explained that to me. Further, I do not possess the design work and detailed budget, as Mr. [redacted] claims, because he never provided them to me and the contract states the design work is the property of KM REMODELING and cannot be reused without KM REMODELING’s written consent.For me to accept Mr. [redacted]’s response, there would be no charge for any re-design (application of the credit for design of $1,500 already paid) and full application of my paid down payment (of $3,589). Based on Change Order #2, the total additional amount (with no charge for re-design (or credit for design already paid) and applying my down payment paid) would be $2,386.62. This amount includes me acquiescing regarding the profit and overhead for the electrical work. To ensure timely completion of the work, I could pay no more than half of this amount up front and retain the remainder until satisfactory completion of the work. If this is not acceptable to Mr. [redacted], then an acceptable response would be for Mr. [redacted] to return the $3,589 I paid for down payment (as no physical work for this amount paid has been accomplished beyond the project design), minus $270 to cover the rest of the project design fee that is listed in the proposal.
Regards,
[redacted]
Although we disagree on the details of our conversation and I never received a text from Mr [redacted], I have agreed to refund the $750 design agreement and have been willing to do so from the beginning. My phone call was to say exactly that and to apologize for not moving as quickly as he wanted....
I'm sure this process wouldn't have been necessary if I had been able to say more than one sentence before he hung up on me.
Mr and I have mutually agreed to dissolve this issue. [redacted] has agreed to remove her complaint from the Revdex.com and I will refund her the design fee. I s. [redacted]would like to express my sincere apology to [redacted]. KM BUILDERS works diligently to keep the communication...
flowing and tries to avoid miscommunication at all costs. Respectfully, [redacted]
I am responding to Mr. [redacted]’s response per paragraph as follows:1) Correct: I never stated why I was removing overhead for the electrical portion of the contract. I don’t have to tell a client why nor did I feel that was necessary at the time. We all know that this is irrelevant. 2) I reserve the right to structure contracts individually. In the case of the change order in question I elected not to discount from our regular rate. Again, this is not necessary to state to a customer or anyone else. Mr. [redacted] has repeated irrelevant statements repeatedly and this takes valuable time that I do not have to spare. Thus considerable time will transpire when repetitive statements and accusations are made in our correspondence.3) I never said that I don’t charge overhead and profit on subcontracted work. I merely said “I am not charging overhead and profit on THIS subcontracted portion of THIS proposal.” See the above paragraph for an explanation or the rational.4) I do not accept his offer. Mr. [redacted] is obligated to honor his commitments of the contract.5) It all adds up when you figure I was not adding profit and o/h to the electrical portion in the original contract. Again, Mr. [redacted] is misquoting me. Obviously the math adds up with my perspective of the conversation.6) No mistakes were made. It was a business decision. It was final. There is no justification for voiding a contract.7) I do not accept his offer. I am retaining what we all agreed to. Mr. [redacted] is obligated to honor his commitments of the contract. I am not obligated to change the contract, explain why I am sticking to the terms of the contract or provide him with a new agreement.8) This is irrelevant. I am not demanding that we keep the funds for any new project design. It is merely for the project already designed. I am not required to forfeit these or apply to another project even though I would have considered it at one time in the past.9) The terms of the change order are specified in it and are nonnegotiable. If Mr. [redacted] does not agree with the terms the terms of the original contract are still applicable and current. No new contract is necessary.10) He may be correct on this point but it is irrelevant to the issue at hand.11) He is correct but if we don’t agree he is bound by the terms of the original contract. He is in violation of the terms of the contract. 12) Neither a “he said, she said” relation of a conversation nor “here say” is acceptable evidence in a court in Texas. Mr.[redacted] has not corroborating evidence to support his misconstrued view of the events that transpired. My evidence is that the contract matches my view of theconversation.13-15) I do not accept Mr. [redacted]’s offer. Mr. [redacted] is obligated to honor his commitments of the contract.Conclusion:In an effort to accommodate the fact that they wish to no longer proceed with the contract that they signed I have made an alternative offer to Mr. and Mrs. [redacted] that they rejected (as can be seen in their correspondence). It is not necessary to continue the discussion of my offer. They have rejected it and I have rejected their alternate offer, period! I will not waste any more time discussing or justifying my alternate offer to them, however, they should keep in mind that it is they whoare in violation of the contract and I have no obligation to modify my terms, for whatever reason, until it pleases them. Sincerely,[redacted]KM BUILDERSKM REMODELING LLC
Mr [redacted] is correct in almost everything he has described. He does not understand that what I was willing to do in the original contract, specifically, remove any profit or overhead for the electrical portion of a much larger contract, I am unwilling to do for a much smaller contract as I must...
cover my overhead and would like to make a profit on this job without using up all the funds we needed to cover our costs for the design work. He now has the design work and detailed budget which I told him would only wold only be given to him if he paid a downpayment. He paid the downpayment and took all the design work and the detailed budget. Now after receiving everything he needs to do the building on his own he is unhappy with his decision. Applying the down payment to a different contract is a very generous offer considering we are in a contract to build the building and I am acquiescing greatly by even considering rescinding that contract. We reserve the right to apply overhead and profit to any future contract if we are going to apply the down payment from previous contract. This offer will expire in 30 days.
Revdex.com:
I have reviewed the response made by the business in reference to complaint ID [redacted], and find that this resolution is satisfactory to me.
Regards,
Patricia [redacted]
Complaint: [redacted]
I am rejecting this response because:The response from the business does not provide me anything to accept or reject, except for the comments themselves. Accordingly, I reject the response. The business has not made an offer. Mr. [redacted] has clearly indicated multiple times in his last response that he rejects my offers. While Mr. [redacted] claims my perspective of the conversation is incorrect, he does not provide any verifiable proof other than stating his perspective of the conversation is different or claim that the contract matches his view of the conversation. The contract price, in comparing to the final proposal, proves that profit and overhead were not calculated against the subcontracted work. There is no recording or transcript of what was said during the proposal meeting or the physical conversations between myself and Mr. [redacted]. My supporting, corroborating evidence to support my claims of what was said during the proposal meeting is my wife who was present during the entire meeting; conversely, Mr. [redacted]'s employee that was in attendance during the proposal meeting did depart momentarily when the final proposal and contract were being generated. It is plausible that what was said at that meeting occurred while his employee was away...either way, there is no way to verifiably prove his employee was or was not present when Mr. [redacted] made his statement concerning profit and overhead as it applies to subcontracted work. The statements I have made, that Mr. [redacted] claims are irrelevant, were presented to show that Mr. [redacted] has made incorrect statements, such as his claim that I had in my possession the design work and detailed budget. Clearly, I do not as I already indicated. Claims that my statement is irrelevant is most possibly a defense mechanism to deflect attention that he did in-fact make a false claim. While Mr. [redacted] states he is not obligated to change the contract, simply put he can make changes...as he did when he charged profit and overhead in the change order to a sub-cost element for which he previously was not charging in the basic contract. Further, when he originally claimed he would not charge me for redesign of a future project, he later changed it to accommodate himself by stating he would charge me for the change order I requested due to requiring a redesign. As I already indicated, there would not be any redesign required. Consider that the original design was over designed, and my change was scaling it back (or a descope) whereby the original design for where the electrical work to be done is still supported by the original design. Hence, no requirement for charging or requirement for me to pay design fee again.We have not continuously tried to change things until it pleases us. When we signed the contract, while we believed at that time the total price was higher than expected we felt the designed project was acceptable. If we did not, we would not have signed the contract. Granted, we should have "slept on it" to ponder the decision more before signing and paying the initial 10%. The very next day we no longer felt comfortable with the project primarily based on the total price; it was truly more than we wanted to pay. That night when I called and spoke with Mr. [redacted], with a heavy heart I told him we no longer felt comfortable with the project and originally requested he refund us the 10% down payment we paid minus any additional reasonable costs incurred to date, while understanding the original deposit paid was non-refundable. Mr. [redacted] stated he "tends" to not return what was paid. So that I would not lose any benefit for what we paid, Mr. [redacted] stated he would apply what we paid to a future project, and that he would not charge for redesign. Following the logic that I not lose any benefit for what we paid, I agreed to think about what potential future project we may want KM Builders/Remodeling to do. As I have stated, my wife and I decided upon a future project which essentially descoped the original project. When I spoke with Mr. [redacted] about the revised project I informed him of what features we did not need nor require. But when I received the first change order, the deductions I indicated had not been removed as requested. Further, I realized that Mr. [redacted] was now charging profit and overhead against a sub-cost element for which he had not charged previously. When Mr. [redacted] finally provided the revised change order, the deductions I requested were finally removed but Mr. [redacted] was still charging profit and overhead where he was not before and he now wanted to charge me again for project redesign. I did not ask for any other changes to the actual work, and I remained consistent in regards to not paying for redesign (based on Mr. [redacted]'s offer to not charge me, which he later withdrew) and for not paying for profit and overhead that was not part of the original contract. I later acquiesced regarding the profit and overhead to the sub-cost element, which Mr. [redacted] essentially rejected in his lastest response. My statement of paying the remainder up front and the remainder upon satisfactory completion of the work (based on no charge for redesign) is to protect myself as a consumer to ensure the work performed is satisfactory. Otherwise, if I were to pay the remainder up front then I would have no viable leverage available to ensure the work is satisfactory (taking into consideration that KM Builders has not performed any physical work other than design). Mr. [redacted] has rejected this.On 3/3/15 I told Mr. [redacted] to put a hold on the project and to not incur any further costs. No actual, physical construction work has been performed to date. Mr. [redacted]'s refusal to refund me the down payment paid (minus $270 to cover the full cost of the $1,770 original design fee) for work not performed is in essence holding my down payment in hostage in either an attempt for me to seek a future project from KM Builders/Remodeling or as punishment for not wanting to continue the original project. Since I told Mr. [redacted] on 3/3/15 to put a hold on the project, I have not authorized any construction work to begin/resume. If physical construction work had been accomplished, I would rightfully pay for work performed; however, I do not intend to pay for work not performed. I understand that within the contract it states any down payment received or portion thereof is refundable only at the discretion of KM Remodeling. As it is KM Remodeling's discretion, Mr. [redacted] can choose to refund my down payment (minus $270 as I have offered to fully compensate for the contractually stated design fee). As no physical work has been performed beyond the design and no additional costs were incurred based on when the project was put on hold, I believe it would be reasonable for my down payment to be returned.In summation, Mr. [redacted] has rejected my offer as he indicated multiple times. The response is unsatisfactory.
Regards,
[redacted]
Complaint: [redacted]
I am rejecting this response because:At no time previously did [redacted] ever state he was willing to remove profit and overhead for the electrical portion of a much larger contract. As I stated in my initial complaint to the Revdex.com (Revdex.com) on 6/8/15, during the proposal meeting on 3/2/15 Mr. [redacted] explained to my wife and I that he does not charge profit and overhead on subcontracted costs. Neither at the proposal meeting nor during any other communication did Mr. [redacted] ever explain what he now claims regarding profit and overhead costs.After Mr. [redacted] provided me Change Order #1 on 4/20/15, I responded that same day. In my response I pointed out that Mr. [redacted] was now charging profit and overhead against the electrical option, contrary to the final proposal presented where profit and overhead did not include the electrical option and contrary to Mr. [redacted]’s explanation to my wife and I on 3/2/15 that he does not include subcontracted work in his profit and overhead calculations. Three weeks went by without any response/explanation from Mr. [redacted]; therefore, I followed up with him on 5/3/15. Two more weeks passed (for a total of five weeks) without any response from Mr. [redacted], so I followed up again on 5/25/15. Due to not receiving any response from Mr. [redacted] in five weeks, in my follow-up on 5/25/15 I requested my down payment be returned.On 5/28/15, five weeks after my response to Change Order #1 on 4/20/15, Mr. [redacted] finally responded along with providing Change Order #2. While he apologized for the “exceptional delay,” he stated he had gone through some personnel losses and gotten behind on multiple items. In his response, Mr. [redacted] claimed he did not feel that he was obligated to refund or even apply all the money I had given for the original project. He claimed he would not credit me for the design deposit since the project was not what was designed. He further stated I do not try to insist that he owe me anything unless part of the contract signed. In Mr. [redacted]’s response on 5/28/15, he did not provide any explanation claiming he removed profit and overhead for the electrical portion of a much larger contract. Other than his statement on 3/2/15 that he does not charge profit and overhead on subcontracted work, Mr. [redacted] did not provide any explanation, rational or otherwise, as to why profit and overhead did not include the electrical portion or why he should not return the down payment I’ve paid.In my response to Mr. [redacted] on 5/29/15, I again pointed out that the final proposal presented on 3/2/15 never had profit and overhead for the electrical portion and again reminded Mr. [redacted] of his explanation to my wife and I that same night (3/2/15) where he stated he does not include subcontracted costs in calculating his profit and overhead. I have offered to compensate Mr. [redacted] an additional $270 (to be added to the $1,500 deposit I had paid) to cover his design fees/costs of $1,770 as indicated in the proposal and subsequently in each change order provided. Otherwise, I requested Mr. [redacted] return my down payment ($3,589-$270 as just explained), for I had not received any work or benefit for this amount paid.On 6/2/15, Mr. [redacted] replied. In his response he stated the only reason I “did not see profit and o/h applied is because it was in a list of options.” He further stated that he explained to me “at the time of the proposal that any option selected would have these applied after the total number of options had been selected” by me. He explained that he didn’t know which ones (options) I wanted so he never calculated the o/h and profit at that time, and that he must add these fees to stay in business as they are necessary. However, this statement from Mr. [redacted] is factually incorrect for when reviewing the final presented proposal it is clear that profit and overhead does not include the electrical portion, and the final price in the proposal matches the final price in the original contract...which again is proof that Mr. [redacted] did not fully calculate the profit and overhead against all the selected options as he explained on 6/2/15 and is different than his explanation to my wife and I on 3/2/15 that he does not charge profit and overhead against work that is subcontracted. Additionally, no previous explanation exists from Mr. [redacted], verbally or written, that he was willing to not charge profit and overhead to the electrical portion of a much larger contract, but now he believed he should charge profit and overhead to the electrical portion due to the changes to the contract. He essentially added it without a proper and thorough explanation, and is going against his verbal word on 3/2/15.In his Revdex.com response dated 6/8/15, Mr. [redacted] claims he must cover his overhead and would like to make a profit on this job without using up all the funds needed to cover his costs for the design work. I point out he is still charging profit and overhead to his direct costs, which total $1,032.53. Profit and overhead calcucated against the current electrical portion from Change Order #2 is an additional $779.74. If Mr. [redacted] had calculated profit and overhead against the electrical portion of the original contract, the additional amount would have been $1,214.00. If it was a decision of Mr. [redacted]’s to not charge profit and overhead to the electrical portion due to it being subcontracted, as Mr. [redacted] explained to my wife and I, or in an effort to reduce overall costs (though he never explained this), that is a business decision made by Mr. [redacted] for which I should not have to burden due to the business decision made by Mr. [redacted]. If it was an error on he or his business’ part to not calculate the profit and overhead to the electrical portion when possibly they should have, that is a business error of no fault of my own for which I am also not responsible for it was not in the final proposal that was accepted nor in the original contract. If Mr. [redacted] made a mistake and failed to include profit and overhead against all selected options as he possibly should have from the onset, the contract between he and I would now be void, due to defective pricing, and he would no longer have a legally binding contract nor a basis to not return my paid deposit. A void contract would void all terms and conditions within the contract. Subsequently, if Mr. [redacted] rescinded the contract, as he stated he is considering in his Revdex.com response, then the down payment of $3,589 I’ve paid should be returned, especially since KM Builders has not done any further work to retain or earn payment, even on a rescinded contract. If KM Builders had done work beyond the project design (cost of $1,770 and mostly covered by my original deposit of $1,500), I would agree to pay reasonable, substantiated costs for the work done.That said, I’ve offered multiple times to compensate Mr. [redacted] for the total project design at the cost listed in the proposal of $1,770. Mr. [redacted] claims he does not want to use up all the funds needed to cover for the design work, yet he has not stated the amount for design work. The contractual amount for the design work, as indicated in the proposal, is $1,770. I’ve clearly indicated to him I would pay him that amount (additional $270 over the $1,500 originally paid for design). As for any other amount, I asked Mr. [redacted] to provide a certified list of costs incurred, of which Mr. [redacted] flat out refused to provide. Though I requested he not incur any additional costs on the project when I called him on 3/3/15 (the day after we signed the contract), Mr. [redacted] has refused to provide a certified list of cost incurred. Therefore, he has not provided a basis for any additional amount he should retain and not return to me, for work performed on this project beyond the design effort.Mr. [redacted] claims this project is entirely different than the original project that would require a whole new design effort, this is entirely correct. The electrical portion of the original contract as well as for the change order are almost identical; the running of the upgraded electrical line, running it into my garage, and installing the panel for both the original contract and the change order are the same. The original design, still in the possession of KM Builders, shows this. Therefore, for Mr. [redacted] to claim my original payment for design ($1,500) should not be credited to the change order since he has to do a completely different design is incorrect. There is no redesign effort for the work in the change order.Change Orders are changes to an existing contract; therefore, Mr. [redacted]’s claim of applying the down payment to a different contract is also not correct. Since the original contract was to build a garage extension with running upgraded electrical as the option to my existing garage, and the change order is running the same upgraded electrical to my existing garage, it does not constitute a new contract…rather, simply a change order to the original contract. If I were to completely cancel any work on my garage and seek KM Builders to do a totally different project, such as build an extension onto my house in a different location or maybe a guesthouse not connected to my house or garage, that would constitute a new contract.Mr. [redacted] has claimed I possess the design work and detailed budget, whereby he also claims he only provided to me if I paid the down payment. Another incorrect statement. No such statement was made the night of the proposal, and the down payment is actually part of the “Payment Schedule” as indicated in the contract and consists of “approximately 10% due upon acceptance.” The project designs were retained by KM Builders, which is in accordance with the contract which states “All plans, specifications, artwork, etc., contained within remains the sole property of KM REMODELING. This material may not be reused, distributed, or reproduced without the express written consent of KM REMODELING.” Therefore, per the contract and contrary to Mr. [redacted]’s Revdex.com response, I do not possess the design work and I am not allowed to use the design work to complete the building on my own. As for the detailed budget, no detailed budget was ever provided to me by KM Builders. While I have a copy of the original proposal, the final presented proposal, the contract (that does not contain cost breakdown), and Change Orders #1 and #2, no itemized list or detailed budget has been provided by Mr. [redacted] or KM Builders. As I indicated, I requested Mr. [redacted] to provide a certified list of costs incurred, for which he refused to provide. Even if he had provided me a certified list of costs incurred, that list would not provide me a detailed, itemized list to serve as a detailed budget for me to use on my own to complete the project.Just as he and I can discuss and potentially agree on changes to the original contract for work to be performed (through change orders) for which he and I must mutually agree upon, likewise the same holds true if Mr. [redacted] wants to later add profit and overhead elsewhere in the contract for which he previously did not include…it must be mutually agreed upon between the two parties.Verbal statements are binding agreements in the State of Texas. In this instance, those statements would be taken in conjunction with the contract. Mr. [redacted]’s verbal statements that are considered binding are: his explanation on 3/2/15 that he does not charge profit and overhead to his subcontracted work, and his statement on 3/3/15 that he would redesign and not charge me for (re)design for a future project and would apply my deposit toward a future project with KM Builders (this is also inline with KM Builder’s response to a Revdex.com compliant on or around 1/14/14 where KM Builders stated they would “be willing to apply the deposit of $5000 toward any room addition that we design and build onto their new home and not charge for the re-design work). There is a proven record that KM Builders has stated they would not charge for redesign and also apply the deposit paid.Copies of everything I have (proposal, final proposal, contract, change orders, and complete e-mail discussions) are readily available to provide to the Revdex.com to substantiate every statement I’ve made.Therefore, the reason I cannot understand what Mr. [redacted] states that regarding removing any profit and overhead for the electrical portion of a much larger contract is because he never explained that to me. Further, I do not possess the design work and detailed budget, as Mr. [redacted] claims, because he never provided them to me and the contract states the design work is the property of KM REMODELING and cannot be reused without KM REMODELING’s written consent.For me to accept Mr. [redacted]’s response, there would be no charge for any re-design (application of the credit for design of $1,500 already paid) and full application of my paid down payment (of $3,589). Based on Change Order #2, the total additional amount (with no charge for re-design (or credit for design already paid) and applying my down payment paid) would be $2,386.62. This amount includes me acquiescing regarding the profit and overhead for the electrical work. To ensure timely completion of the work, I could pay no more than half of this amount up front and retain the remainder until satisfactory completion of the work. If this is not acceptable to Mr. [redacted], then an acceptable response would be for Mr. [redacted] to return the $3,589 I paid for down payment (as no physical work for this amount paid has been accomplished beyond the project design), minus $270 to cover the rest of the project design fee that is listed in the proposal.
Regards,
[redacted]
Although we disagree on the details of our conversation and I never received a text from Mr [redacted], I have agreed to refund the $750 design agreement and have been willing to do so from the beginning. My phone call was to say exactly that and to apologize for not moving as quickly as he wanted....
I'm sure this process wouldn't have been necessary if I had been able to say more than one sentence before he hung up on me.
Mr and I have mutually agreed to dissolve this issue. [redacted] has agreed to remove her complaint from the Revdex.com and I will refund her the design fee. I s. [redacted]would like to express my sincere apology to [redacted]. KM BUILDERS works diligently to keep the communication...
flowing and tries to avoid miscommunication at all costs. Respectfully, [redacted]
I am responding to Mr. [redacted]’s response per paragraph as follows:1) Correct: I never stated why I was removing overhead for the electrical portion of the contract. I don’t have to tell a client why nor did I feel that was necessary at the time. We all know that this is irrelevant. 2) I reserve the right to structure contracts individually. In the case of the change order in question I elected not to discount from our regular rate. Again, this is not necessary to state to a customer or anyone else. Mr. [redacted] has repeated irrelevant statements repeatedly and this takes valuable time that I do not have to spare. Thus considerable time will transpire when repetitive statements and accusations are made in our correspondence.3) I never said that I don’t charge overhead and profit on subcontracted work. I merely said “I am not charging overhead and profit on THIS subcontracted portion of THIS proposal.” See the above paragraph for an explanation or the rational.4) I do not accept his offer. Mr. [redacted] is obligated to honor his commitments of the contract.5) It all adds up when you figure I was not adding profit and o/h to the electrical portion in the original contract. Again, Mr. [redacted] is misquoting me. Obviously the math adds up with my perspective of the conversation.6) No mistakes were made. It was a business decision. It was final. There is no justification for voiding a contract.7) I do not accept his offer. I am retaining what we all agreed to. Mr. [redacted] is obligated to honor his commitments of the contract. I am not obligated to change the contract, explain why I am sticking to the terms of the contract or provide him with a new agreement.8) This is irrelevant. I am not demanding that we keep the funds for any new project design. It is merely for the project already designed. I am not required to forfeit these or apply to another project even though I would have considered it at one time in the past.9) The terms of the change order are specified in it and are nonnegotiable. If Mr. [redacted] does not agree with the terms the terms of the original contract are still applicable and current. No new contract is necessary.10) He may be correct on this point but it is irrelevant to the issue at hand.11) He is correct but if we don’t agree he is bound by the terms of the original contract. He is in violation of the terms of the contract. 12) Neither a “he said, she said” relation of a conversation nor “here say” is acceptable evidence in a court in Texas. Mr.[redacted] has not corroborating evidence to support his misconstrued view of the events that transpired. My evidence is that the contract matches my view of theconversation.13-15) I do not accept Mr. [redacted]’s offer. Mr. [redacted] is obligated to honor his commitments of the contract.Conclusion:In an effort to accommodate the fact that they wish to no longer proceed with the contract that they signed I have made an alternative offer to Mr. and Mrs. [redacted] that they rejected (as can be seen in their correspondence). It is not necessary to continue the discussion of my offer. They have rejected it and I have rejected their alternate offer, period! I will not waste any more time discussing or justifying my alternate offer to them, however, they should keep in mind that it is they whoare in violation of the contract and I have no obligation to modify my terms, for whatever reason, until it pleases them. Sincerely,[redacted]KM BUILDERSKM REMODELING LLC
Mr [redacted] is correct in almost everything he has described. He does not understand that what I was willing to do in the original contract, specifically, remove any profit or overhead for the electrical portion of a much larger contract, I am unwilling to do for a much smaller contract as I must...
cover my overhead and would like to make a profit on this job without using up all the funds we needed to cover our costs for the design work. He now has the design work and detailed budget which I told him would only wold only be given to him if he paid a downpayment. He paid the downpayment and took all the design work and the detailed budget. Now after receiving everything he needs to do the building on his own he is unhappy with his decision. Applying the down payment to a different contract is a very generous offer considering we are in a contract to build the building and I am acquiescing greatly by even considering rescinding that contract. We reserve the right to apply overhead and profit to any future contract if we are going to apply the down payment from previous contract. This offer will expire in 30 days.
Revdex.com:
I have reviewed the response made by the business in reference to complaint ID [redacted], and find that this resolution is satisfactory to me.
Regards,
Patricia [redacted]