This Construction Contract (the "Contract") is made as of (the "Effective Date") by and between herein referred to as CUSTOMER, and , herein referred to as CONTRACTOR.
CONTRACTOR desires to provide construction services to CUSTOMER and CUSTOMER desires to obtain such services from CONTRACTOR.
THEREFORE, in consideration of the mutual promises set forth below, the parties agree as follows:
1. DESCRIPTION OF SERVICES.
Beginning on or shortly after , CONTRACTOR will provide to CUSTOMER the work described on Exhibit A hereto or as otherwise agreed to among the parties in a separate writing (in any case, the “Scope of Work”) with respect to the property (collectively, the "Services"):
2. SCOPE OF WORK.
CONTRACTOR will provide all services, materials and labor outlined on the Scope of Work for the property located at the address included above hereinafter referred to as ("Worksite"). This includes building and construction materials, necessary labor and site security, and all required tools and machinery needed for completion of construction.
CONTRACTOR agrees that CUSTOMER shall have the option to purchase the materials required in connection with the Services directly or in conjunction with the CONTRACTOR. CONTRACTOR and CUSTOMER will order such materials prior to the payment of the FIRST PAYMENT hereunder and the First Payment will be reduced by the amount of the materials plus any difference between the actual cost of such materials and the estimated cost thereof provided for in the Scope of Work. Moreover, the First Payment shall be further reduced in the event that such materials are to be delivered to the Worksite at the expense of the CUSTOMER by an amount equal to the labor costs of the CONTRACTOR related to the obtainment of the materials as provided for in the Scope of Work. In connection with the foregoing, CONTRACTOR and CUSTOMER agree to reasonably cooperate with respect to ordering all materials to minimize costs and avail themselves of all available discounts with respect to such materials, including, but not limited to store discounts and frequent customer discounts available to the CONTRACTOR.
3. PLANS, SPECIFICATIONS AND CONSTRUCTION DOCUMENTS.
CUSTOMER will make available to CONTRACTOR all plans, specifications, drawings, blueprints, and similar construction documents necessary for CONTRACTOR to provide the Services described herein. Any such materials shall remain the property of CUSTOMER. CONTRACTOR will promptly return all such materials to CUSTOMER upon completion of the Services.
4. COMPLIANCE WITH LAWS.
CONTRACTOR shall provide the Services in a workmanlike manner, and in compliance with all applicable federal, state and local laws and regulations, including, but not limited to all provisions of the Fair Labor Standards Act, the Americans with Disabilities Act, and the Federal Family and Medical Leave Act.
5. WORK SITE.
CUSTOMER warrants that CUSTOMER owns the property herein described or is a party to a contract relating to the purchase thereof and is authorized to enter into this contract. Prior to the start of construction, CUSTOMER shall provide an easily accessible building site, which meets all zoning requirements for the structure, and in which the boundaries of CUSTOMER property will be clearly identified.
CUSTOMER agrees to pay CONTRACTOR the total sum as follows:
Event: Start of work Payment Amount: $ (the "First Payment") due and payable prior to the Commencement Date (as defined below).
Completion of work outlined in the Scope of Work to the reasonable satisfaction of CUSTOMER and receipt of invoice Payment Amount: $ or the total due on final invoice if accompanied by a "change order" signed by both parties (the "Last Payment"), any such payment due and payable within five (5) business days of the date of receipt of such invoice therefor.
CONTRACTOR and CUSTOMER agree to cooperate with respect to the means to be used for making any payment required hereunder. CONTRACTOR agrees to accept any of the following payment methods: credit card, certified check, bank transfer or any other means agreed to between the parties.
CUSTOMER shall not be responsible for any additional payment hereunder as a result of CONTRACTOR hiring, utilizing or contracting with any other service provider to provide the Services, and any payment arising therefrom shall be made from the payment amounts included herein by the CONTRACTOR and shall be the sole responsibility of the CONTRACTOR.
In addition to any other right or remedy provided by law, if CUSTOMER fails to pay for the Services when due, CONTRACTOR has the option to treat such failure to pay as a material breach of this Contract, and may cancel this Contract and/or seek legal remedies.
In addition to any other right or remedy provided by law, if Contractor fails to complete the work required hereby within fourteen (14) calendar days from the Due Date (as defined below), CUSTOMER has the option to treat such failure to pay as a material breach of this Contract, and may cancel this Contract with no further payments due hereunder and/or seek legal remedies.
CONTRACTOR shall commence the work to be performed on (the "Commencement Date") and shall complete the work on or prior to (the "Due Date").
[In the event that the CONTRACTOR completes the items required by the scope of work on or prior to the Due Date in a matter reasonably satisfactory to the CUSTOMER, CUSTOMER agrees to pay to CONTRACTOR a bonus payment equal to five percent (5%) of the total payment amounts to be paid to the CONTRACTOR hereunder. In the event that the items required by the scope of work are not completed prior to the Due Date in a matter reasonably satisfactory to the CUSTOMER, the Last Payment due hereunder shall be reduced by five percent (5%) thereafter and an additional five percent (5%) for each additional calendar week that CONTRACTOR fails to complete such items in accordance herewith. Notwithstanding anything to the contrary in the foregoing, CUSTOMER agrees that in the event of delays resulting from the fault of the CUSTOMER, such Due Date shall be extended by the number of days equal to the period of delays reasonably resulting therefrom.]Determine whether to include this bonus/penalty language provision – if so delete brackets and remove bold. If not, delete in entirety.
8. CHANGE ORDER.
CUSTOMER, CONTRACTOR or any allowed person, e.g. lender, public body, or inspector, may make changes to the Scope of Work from time to time during the term of this Contract. However, any such change or modification shall only be made in a written "Change Order" which is signed and dated by both parties. Such Change Orders shall become part of this Contract. CUSTOMER agrees to pay any increase in the cost of the construction work as a result of any written, dated and signed Change Order also signed by the CUSTOMER. In the event the cost of a Change Order is not known at the time a Change Order is executed, CONTRACTOR shall estimate the cost thereof and CUSTOMER shall pay the actual cost whether or not this cost is in excess of the estimated cost, but shall not be obligated to pay any amount that is equal to an amount greater than five percent (5%) of such estimated cost.
CONTRACTOR shall apply for and obtain any necessary permits and licenses required by the local municipal/county government to do the work, the cost thereof shall be included as part of the Payment to CONTRACTOR under this Contract.
CONTRACTOR has placed in force valid insurance covering its full liability under applicable law and shall furnish and maintain general liability insurance for injury to or death of a person or persons, and for personal injury or death suffered in any construction related accident and property damage incurred in rendering the Services.
CONTRACTOR, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of CONTRACTOR, or divulge, disclose, or communicate in any manner, any information that is proprietary to CUSTOMER. CONTRACTOR and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Contract.
Upon termination of this Contract, CONTRACTOR will return to CUSTOMER all records, notes, documentation and other items that were used, created, or controlled by CONTRACTOR during the term of this Contract.
12. INDEMNIFICATION AND DAMAGE TO THE PROPERTY.
With the exception that this Section shall not to be construed to require indemnification by CONTRACTOR to a greater extent than permitted under the public policy of the jurisdiction governing the terms hereof, CONTRACTOR shall indemnify CUSTOMER against, hold it harmless from and defend CUSTOMER from all claims, loss, liability, and expense, including actual attorneys' fees, arising out of or in connection with CONTRACTOR's Services (and those of its employees, agents, contracted parties or other representatives) performed under this Contract. This indemnity shall be provided even if CUSTOMER is partly responsible for the claim, damage, injury or loss, but CONTRACTOR shall not provide indemnity against claims or losses deemed to be caused by the sole negligence or willful misconduct of CUSTOMER or CUSTOMER's agents or employees.
CONTRACTOR shall be responsible for any and all damages to the Property resulting from the performance of the Services hereunder or otherwise for its own part and those caused by the actions or omissions of its employees, agents, contracted parties or other representatives. CUSTOMER shall be entitled to withhold any and all payments otherwise due hereunder until such time as such damages are remedied by the CONTRACTOR to the reasonable satisfaction of the CUSTOMER, all such determinations hereunder to be made in good faith by the parties.
13. FREE ACCESS TO WORKSITE.
CONTRACTOR will ensure driveways are kept clear for the movement of vehicles during work hours. CONTRACTOR will make reasonable efforts to protect driveways, lawns, shrubs, and other vegetation. CONTRACTOR also agrees to keep the Worksite clean and orderly and to remove all debris as needed during the hours of work and upon completion of the Services in order to maintain work conditions which do not cause health or safety hazards.
CUSTOMER shall provide and maintain water and electrical service, connect permanent electrical service, gas service or oil service, whichever is applicable, and tanks and lines to the building constructed under this Contract after an acceptable cover inspection has been completed, and prior to the installation of any inside wall cover. CUSTOMER shall, at CUSTOMER's expense, connect sewage disposal and water lines to said building prior to the start of construction, and at all times maintain sewage disposal and water lines during construction as applicable. CUSTOMER shall permit CONTRACTOR to use, at no cost, any electrical power and water use necessary to carry out and complete the work.
CUSTOMER and any of its representatives and agents shall have the right to inspect all work performed under this Contract at all times during and upon completion of the construction process with reasonable limitations applicable in the case of health or safety hazards that could result therefrom. All defects and uncompleted items shall be reported immediately. All work that needs to be inspected or tested and certified by an engineer as a condition of any government departments or other state agency, or inspected and certified by the local health officer, shall be done at each necessary stage of construction and before further construction can continue. All inspection and certification will be done at CUSTOMER's expense.
The occurrence of any of the following shall constitute a material default under this Contract:
1. The failure of CUSTOMER to make a required payment when due.
2. The insolvency of either party or if either party shall, either voluntarily or involuntarily, become a debtor of or seek protection under Title 11 of the United States Bankruptcy Code.
3. A lawsuit is brought on any claim, seizure, lien or levy for labor performed or materials used on or furnished to the project by either party, or there is a general assignment for the benefit of creditors, application or sale for or by any creditor or government agency brought against either party.
4. The failure of CUSTOMER to make the building site available or the failure of CONTRACTOR to deliver the Services in the time and manner provided for in this Contract or to perform its other obligations provided for in this Contract.
In addition to any and all other rights a party may have available according to the laws of the jurisdiction governing the terms hereof, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving said notice shall have 10 days from the effective date of said notice to cure the default(s) or begin substantial completion if completion cannot be made in 10 days. Unless waived by a party providing notice, the failure to cure or begin curing, the default(s) within such time period shall result in the automatic termination of this Contract.
18. FORCE MAJEURE.
If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party's reasonable control ('Force Majeure'), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall be defined to include the following: acts of God, fire, explosion, vandalism, storm, casualty, illness, injury, general unavailability of materials or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
19. INDEPENDENT CONTRACTOR.
The parties explicitly do not have the intention to establish a relationship of employment and the CONTRACTOR expressly acknowledges the desire to work as an independent contractor only (including its employees, officers, agents, and affiliates).
This Contract and all of the provisions hereof shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns and, except as otherwise expressly provided herein, neither this Contract, nor any of the rights, interests or obligations hereunder shall be assigned by the CONTRACTOR without the written consent of the CUSTOMER.
21. DISPUTE RESOLUTION.
The parties will attempt to resolve any dispute arising out of or relating to this Contract through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure. Any controversies or disputes arising out of or relating to this Contract will be submitted to mediation in accordance with any statutory rules of mediation. If mediation does not successfully resolve the dispute or is unavailable, then the parties may proceed to seek an alternative form of resolution in accordance with any other rights and remedies afforded to them by law, including filing suit.
22. ENTIRE CONTRACT.
This Contract, along with Exhibit A hereto and any Change Order, contains the entire Contract of the parties, and there are no other promises or conditions in any other contract whether oral or written concerning the subject matter of this Contract. Any amendments must be in writing and signed by each party with pricing for the additional work clearly outlined. This Contract supersedes any prior written or oral agreements between the parties.
If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
This Contract may be modified or amended in writing, if the writing is signed by each party.
25. GOVERNING LAW.
This Contract shall be construed in accordance with, and governed by the laws of the State of , without regard to any choice of law provisions of or any other jurisdiction.
Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth of the respective party in the opening paragraph or to such other address as one party may have furnished to the other in writing, and any other written form of communication including electronic mail or other means customarily used between the parties including text messaging.
27. WAIVER OF CONTRACTUAL RIGHT.
The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Contract.
This Contract shall be signed by CUSTOMER and by CONTRACTOR and shall be effective as of the date first written above. This Contract may be canceled by either party without penalty if done so within three days of signing unless CUSTOMER allows work to commence before that three day period or any expense has been incurred by either party in reliance hereon.