KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com ********************** Seeking valuation advice / Reach of Exculpatory clause June 20, 2023 ************************ Seeking valuation advice ************************ Ken: We have spoken many times over the last 25 years and you’ve help me on my original contracts and updated All in One contracts, helped with occasional project negotiations, and final payment negotiations. You’ve always been helpful and in the past when I was about 10 years in the industry you gave me an estimate of my the value of my company. Now that so many years have passed I would like a more detailed evaluation done of my company. A lot has changed over the years and I would appreciate your wisdom and what my business is worth. Let me know what you need and what process we need to go from here. The reason I’m doing this: 1. Either we find a buyer the way the company currently is and it’s very stable and strong very profitable commercial fire alarm business. or 2. Start better positioning my company for a stronger sale within 3 to 5 years from where we are today. Look forward to working through this process with you. Name withheld ************************* Response ************************* The value of your alarm accounts and your alarm business [assuming your alarm accounts are the primary asset] is, after counseling alarm companies for almost 50 years, a relatively easy calculation. Of course it’s not precise but you will get a ballpark so that you can intelligently evaluate offers. More importantly you will get advice how to better enhance your operation to increase your equity. Leaving yourself time to make adjustments and changes to your operation can make all the difference. Typical suggestions include updating your contracts and getting your customers on those contracts; getting all your monitored accounts on your own portable lines; moving per call customers to RMR customers for services such as inspection and repair service plans. You can start the process here: What is My Alarm Company Worth? https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth it’s never too soon to get a fix on your company value and regular reviews can only help keep you on the straight and narrow. ************************* Reach of Exculpatory clause ************************* Ken We have a General Contractor that does not want to sign the exculpatory clause or limitation of liability because they believe it is for the monitoring of the system only and not the installation of a new fire alarm system. Can you please verify if that is the case? Here is what the GC wrote to us: “I spoke with my attorney and he recommends I do not sign this amendment because it will supersede our sub-contract. As discussed, this amendment is specific to subscription of your monitoring services and we are not contracting for those services. There is no assumed liability of monitoring until the owner puts that agreement in place. Your general liability insurance coverage is all that we need for this project. I am not sure what else I can do in order to move this along.” Name withheld **************************** Response *************************** I didn’t see the contract but I am assuming it’s the Commercial All in One. While most of that contract does appear to deal with the after-install services it certainly shouldn’t confuse anyone that it’s a ”monitoring contract”. The Exculpatory clause and Limitation of liability provision do not apply to just monitoring or other after-install services. Those provisions apply to the installation itself. In fact they apply even before the installation because design and recommendations would be covered as well. You need the contractual protection for everything and anything that you do because a loss can be blamed on any and all of your performance or lack thereof. No matter where the mistake, if there was one, was made, you are not the customers, or the General Contractor’s, insurance company. You are not in the insurance business and you cannot be placed in the middle, the beginning or the end, of any claim. The entire purpose of the Standard Form Agreement, the way it’s designed and the way its written, is to keep you out of trouble, which in this context means, risk and liability for your customer’s loss in the event there is a loss despite the existence of the alarm or security equipment and services. When dealing with a General Contractor it’s reasonable for you to accept liability for damages you cause while on the job doing your job; any contractor would be subject to the same risk and damages. But you can’t be liable for losses that you don’t cause just because you install alarm equipment or security services which is designed as detection, not prevention. That’s why you need the Kirschenbaum Contracts™ and E&O coverage from an insurance company who understands it is writing coverage for an alarm company. ********************** STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** ALARM ARTICLES: You can always read our Articles on our website at www.kirschenbaumesq.com/page/alarm-articles updated daily ************************* THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily. https://www.kirschenbaumesq.com/page/alarm-exchange ************************* Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth ****************************** Getting on our email list / Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. ************************** Ken Kirschenbaum,Esq Kirschenbaum & Kirschenbaum PC Attorneys at Law 200 Garden City Plaza Garden City, NY 11530 516 747 6700 x 301 ken@kirschenbaumesq.com www.KirschenbaumEsq.com
