b'MRCA Applicator Agreement Update SpencerFaneBritt&Browne,MRCAsentence ofofWe this subsection, insert and initialthe Trocal System.recommend that GeneralCounsel,hasreviewedthethe following:you add the following clause at the end of following applicator agreements and hasthe first paragraph of Section 10: made the following recommendations:"but subject to the limitation contained in Section 10.""but subject to the limitation contained in Huls America, Inc. ("HAI")the following paragraph." Applicator Agreement5.Section 9(a). This subsection permits HAI to change, modify or discontinue its 1.GeneralObservation.Thisisastandard forms ofFirestone\'s Repair Warranty for Warranties and Service burdensomeagreementwhichimposesAgreements at any time.That\'s fine, asApplicators manyobligationson the applicatorandlong as it does not prejudice your ability to almostnoobligationsonHAI.Itislive up to your contractual obligations underIf you choose to sign the Repair Warranty, important that youread theAgreementprojects which you have begun, but havewe recommend that the followingthree carefullyandcomplywiththevariousnot completed.To correct this, insert themodifications be made prior to execution: obligations which you will undertake as anfollowingafterthewords"Service applicator ofAgreements" atof1.Revisethesecondparagraph,first Trocal System Components.the endthe first sentence: sentence to read:"Contractor agrees to 2.SectionS(c).In thisparagraphand"; provided, however, that HAI will issueallowFirestonetoinspecttherepair." throughouttheAgreementthereareWarranties and Service Agreements which(deleting "and agrees to take those steps references to HAi\'s Standard Warrantiesthe Applicator is contractually obligated toFirestonedeemsnecessaryfor and Service Agreements. You must includeprovide and for which he hasprovidedacceptance"); these in your bid.Youshould requestnoticetoHAIin accordancewiththis Agreement."2. Add the following language to the end copiesandbecomefamiliarwiththeof StandardWarrantiesandServicethe second paragraph: "Following passage 6. Section 10. Wewere~pleasedtoseeof Agreements; and with the cost you mustsaid two (2) year period, without notice pay for the issuance oforthat HAI has picked up the language wefrom Firestone of such Warrantiessome defect in the roofing Service Agreements.have been urging on all suppliers.It appearssystem, Contractor shall have no further in the second paragraph ofItobligation to make repairs at its expense Section 10. says that you arethe hook for two years,under any provision of this Agreement, 3. Section 6(b).The last sentence of thison subsection reads:but after two years you have no furtherprovidedtheContractorpromptly obligations provided that yourepair allcommences and diligently proceeds with leaks brought to your attention within theof "HAIspecificallyrecommendsandthethe correction and repairall such defects Applicator unconditionally acknowledgestwo year period.That\'s the good news.whicharecalledtotheContractor\'s Theattention by Firestone during said two-year that it will satisfy itself that the owner hasbad news is that HAI then adds a clause obtained competent engineering advice onwhich takes away all of the good workperiod;and anyproject,unlesstheApplicatorhasaccomplished earlier in that paragraph.The offending clause is:3. Delete the word "repair" from the end assumed responsibility to the owner."of thethirdparagraphandsubstitutethe Strike through this sentence and initial it. It"and further provided that Applicator hasfollowinglanguage:" . Contractor\'s is simply not reasonable to impose on youinstalled TrocalSystem Componentsinnegligence or its failure to cornply with theburdenof determiningwhether theaccordancewithHAi\'sspecifications,FirestoneRubberGardwritten owner has obtained competent engineeringdetails,insulationinstructionsandspecificationsineffectatthetimeof advice.Thatisnotpartofyourprocedures."installation." responsibility.Assumethatyouhave appliedaTrocalSystem andafter fiveThat clause makes no sense at all followingThe first two modifications are necessary years it shatters. CanHAIpoint the fingerlanguage which exonerates that Applicatorto clearly limit the Contractor\'s liability to at you and say that the ownerthe propertyfrom anyobligation to repair (after twomake repairs at its own expense to a twoof didnotobtaincompetentengineeringyears) defects caused by faulty installation.year period.The third modification is not There is simply no way you can reconcileas advice asto the suitabilityof aTrocalimportant, but is recommended to avoid the beginning and end ofunintended liability to Firestone or third System for this particular project, and itthat paragraph. was up to you, the Applicator, to satisfyparties. yourselfthattheownerhadobtainedWhat you must do is strike through the language quoted above at the end of theFirestone may agree to competentengineeringadvice?Thatthese changes on a scenarioispossibleunlessyoustrikesecond paragraph in Section 10.job-by-job basis.You should initial each through thelanguage quoted above andchange. A similar problem arises at the end of initial the change.the firstparagraph of Section10.The lastAlso you should note that the first paragraph 4.Section6(c).FollowingthewordsentenceofthatparagraphmakestherequirestheContractortouseonly "responsibility"attheendof thefirstApplicatorresponsibleforalldefectsFirestone brand materials in the repair.It arising from the improper use or applicationContinued on Page 4 Page3'