Re: Are These Contract Clauses Reasonable??
OK, I am a lawyer, not admitted to practice in Arkansas, I'm in Washington State and my practice has nothing to do with construction contracts, and I have no clue about Arkansas law, and you should not take what I am saying below as authoritative legal advice, or legal advice at all. Obviously, I do not represent you, nor could I.
Having said that, though, let me give you a basic idea of how most jurisdictions construct (i.e. interpret) contracts and why, if the contract essentially says verbatim what you say, the language doesn't really scare me that much.
First, almost every jurisdiction applies what's called an implied covenant of good faith and fair dealing. Moreover, most every jurisdiction allows parties to avoid unexecuted, partially executed, or fully executed contracts that were premised on what is called mutual material mistakes (hereinafter "MMM"). The following is why these two ideas are important, I believe, to your situation.
The implied, or perhaps explicit, covenant of good faith and fair dealing, in this context, would seem at a minimum, whether it is said or not in the contract by the pool contractor, to AT LEAST REQUIRE the pool contractor to install your pool in a commercially reasonable manner. In other words, be reasonably careful and follow reasonable industry standards in performing the installation. So, if some unqualified dude on the crew, drinks a few beers, and hops on the backhoe and decides they are going to run over your patio for fun, and it gets all cracked up, then notwithstanding the language in your contact, you would have a claim for damages under it. In other words, you are not contracting, nor indemnifying the contractor against his, or his agent's, own negligence.
It seems to me that if you ever ended up in court, the court would construe the provision about unforeseen damages as more or less what it says and limited to what it says, that is; if through best efforts, all around, a sewer pipe, for instance, is not found and burst, through no one's negligence, then the contractor is not liable to you for damages. But, you may be asking yourself now; what would you do then. This is where another idea in contracts about mutual material mistakes comes into play, and if I understand your contract correctly, you might be in a decent spot the way it is currently written.
A basic rule is that any party can avoid a contract provision where a mutual material mistake was involved. A mutual material mistake is where both parties (hence, the word "mutual") believed something important (hence, the word "material") was one thing and it turned out to be another (hence, the word "mistake") at the time of contract formation. You obviously, and the pool contractor too, are not going to execute say a $20,000 or $30,000 contract to install a pool if you knew that the exact site of the excavation, just below the surface, had an old 16 foot thick reinforced concrete missile silo that no one knew about. What the idea of mutually material mistakes does is says where a situation like that comes to pass, and it's no one's fault, the contract can then be avoided. That's the general rule, however, your contract has a slight twist, that actually is pretty favorable to you.
Let's keep going with my missile silo hypothetical: Day 1 the backhoe starts to dig and hits solid concrete. You have three options: i) rescind the first contract and write a new contract, or do what's called work a novation of the old one, and change the site; OR, ii) you COULD claim, "[w]ell OK, start blasting, get rid of it" that's what you covenanted to do in our contract: unforseen things, your cost + 10%, there's no mutual material mistake, we talked about unforeseen occurences and that's we executed, after all, Mr. Pool Builder, you wrote the contract; OR iii) you could, rescind the contract on mutual material mistake grounds, get your money back and walk away, having learned that you have a missile silo in your backyard.
Now, the pool contractor is going to, or should anyway, say Mutual Material Mistake and try to get out of the contract. After all, he doesn't want to spend all summer jackhammering a silo; he has other pools to build. But, you either get your money back or have a nonfrivolous claim under your contract to make him get rid of the obstruction. Now, whether you could convince a court to make him get rid of such a thing as a missile silo is one thing, but you could make him get rid of tree roots, sewer pipes, etc., without having to do the work of running around and getting bids, scheduling work, etc.. So, one way to look at the language, in that situation, is it creates some interesting options for you.
Having said the above, I would suggest two things to you. First, ask him/her to get construction insurance for the build and offer to split the cost with him. I'd call your homeowner's insurance agent, you may even find out you have some applicable coverage. It is my understanding on a pool project, this insurance is not that expensive, a couple hundred bucks at the most. Second, put in a sentence, in the contract, if you want, that says the pool builder agrees to install the pool in a "...commercially reasonable manner." Now, as to the last thing, I don't even think that's necessary, but if it would make you feel more comfortable, I'd do it. And, if the pool contractor won't agree to that language, then I'd run as fast as I can away from him/her and get another one.
I feel much better. 
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