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Basement waterproofing performed by AquaGuard Waterproofing Corporation was not only a ripoff perpetrated by their unlicensed subcontractors, compounded by the aggressive attempts to force us to live with their mistakes, but included grossly negligent behavior that nearly destroyed our basement while threatening the health of our family.
Before examining the differences between what was promised and what was delivered, here is what the arbitrator had to say about this aspect of the work: “The Subcontractor installed unsightly, black, odorous roof/foundation tar coating on the interior basement walls instead of the contractually required cementitious AquaFin coating, and this tar coating was installed sloppily and in a hit or miss manner. The walls were not properly prepared prior to the installation of the tar coating.” Further on, the arbitrator addresses the health issue associated with this outrage: “In addition, the application of the black tar caused a terrible odor throughout the house. The Owner hired David Young, a CESB accredited Council-certified Indoor Environmentalist, of Inlogix Enterprises LLC, to conduct an indoor health assessment of their home. Testing determined that there were 16,000 ng/L TOVCs at the basement, 3,400 ng/L TVOCs at the 1st floor, and 2,600 ng/L TVOCs at the 2nd floor. By comparison, the US Green Building Council states that indoor air quality should be improved when TVOCs exceed 1,500 ng/L. Mr. Young concluded that the black tar was causing elevated TVOC levels which “present a health concern and must be lowered”.”
AquaGuard argued that we did not allow them the right to cure by refusing Subcontractor access to the home, however the arbitrator denied this defense stating in part: “First of all, the Subcontractor had repeatedly proved its incompetence, including the final attempt to remove the tar using a grinder which created hazardous dust throughout the house. Secondly, the Subcontractor was unlicensed.” The arbitrator went on to note: “The Owner timely notified Contractor of the problems with the work, and the Owner offered Contractor ample and reasonable opportunities to come to the house and present a remedial plan. However, Contractor did not take advantage of these opportunities, insisting instead on having its incompetent Subcontractor return to make repairs. The Contractor failed to take diligent, timely and reasonable steps to cure the defective work.”
The Arbitrator did not address the fact that AquaGuard’s Senior Inspector knew that the subcontractor was going to breach the contract and use, as he described it, a petroleum product instead of the Aquafin coating. Here’s what AquaGuard had to say under oath (See AquaGuard Sales Rep Depo Transcript 090612 ):
Q. Did he (i.e., the subcontractor) indicate to you that he was going to be using a petroleum based product?
A. Yes. I can’t say that he specifically said a petroleum based product, but he said it was a roofing material, which typically are petroleum based products. I assumed that.
Q. At that point, is there any methodology for AquaGuard to undertake quality control to see what’s happening to verify that there’s compliance with the contract?
A. I registered my complaint with him at that time.
Q. Okay. And describe for me the nature of your complaint.
A. I just basically said I don’t want that, you know, I don’t — not that I say I didn’t want it on the walls. I basically said that this doesn’t call for the contract, and I think at that time, he said to me that he was using substitution, that he had put up one small section and it appeared to me that it had been approved by Mr. Rzemien. Now, whether it was, I don’t know.
Amazingly the Senior Inspector knew there was going to be a radically different coating put on the wall, assumed it was some roofing material, and did absolutely nothing to check it out himself. It was going to be up to me to either complain or live with whatever was happening in my basement. No inspection, no quality control, nothing but a lame attempt to blame me by saying I saw a small section of this tar on my wall and approved its use. In fact we weren’t even home when this outrage played out.