STANDARD TERMS AND CONDITIONS FOR ALL CONTRACTS:
ARTICLE 1: CONTRACT DOCUMENTS
1.1 The documents comprising the agreement between Owner and Contractor shall consist of the documents listed at 1.2 below (collectively referred to as the “Contract Documents”), which documents are hereby incorporated by reference into, and made a part of, this Contract, and, unless otherwise expressly set forth herein, all references to the Contract shall be deemed to refer to all of the Contract Documents.
1.2 In the event of any conflict among the Contract Documents, the Contract Documents shall govern in the following order of priority:
(1) Modifications in writing and signed by both parties, including any Change Orders;
(2) This Contract;
(3) Contractor’s Scope of Work/Estimate incorporated herein.
ARTICLE 2: THE WORK AND EXCLUSIONS
2.1 The Contractor shall furnish all labor, supervision, materials, equipment, tools, supplies, and temporary facilities as required by the Contract Documents for the work as described in the Scope of Work above, hereinafter referred to as the “Work”.
Unless identified as an explicit line item in the Scope of Work above, the building steel and all bolting as well as all site work and concrete work including foundations and/or footings shall be furnished by the Owner.
2.2 All Work shall be performed in accordance with the Contract Documents. Any inconsistencies or conflicts within the Contract Documents shall be resolved by the Contractor in its reasonable discretion. If a detail of the construction is not specified within the Contract Documents, or should an alternative building practice be available in lieu of a specified procedure, the Contractor may select a construction procedure that complies with industry standards and sound engineering practices. All building measurements are approximate within reasonable tolerance. Unless otherwise specified in writing, materials used by the Contractor in the construction of the Project shall be as prescribed in the Contract Documents, subject to substitution at Contractor’s election should an item not be reasonably available or if its procurement would cause undue delay of the Work. Any substitutions shall be of comparable grade and quality. The construction of the Work is subject to changes in the Contract Documents as required by any governmental authorities.
2.3 If Contractor encounters conditions at the site which are subsurface or otherwise concealed physical conditions which differ from those indicated in the Contract Documents, or which are unknown physical conditions, or differ from those ordinarily found to exist and generally recognized as inherent in construction activities of the type provided for herein, then Contractor shall promptly notify Owner of same, before conditions are disturbed and in no event later than two (2) business days after observance of such conditions. If such conditions will cause an increase in Contractor’s cost and/or time required for performance of the Work, Owner shall execute a Change Order increasing the Contract Price and/or extending the Contract Time.
2.4 No additional grading of the site shall be performed unless otherwise expressly specified. The Owner shall pay the costs for any permit that must be obtained in order for the Contractor to proceed with the Work.
2.5 Owner to contact 811 prior to any underground work for all utility marking before any concrete work to take place, where applicable.
ARTICLE 3: CONTRACT PRICE
3.1 The Owner shall pay the Contractor in current funds for the Contractor's performance of the Work on a “Lump Sum” basis. It is the intent of the parties that the Owner pay Contractor the contract price set forth in the Scope of Work section of this document (the “Contract Price”). The Contract Price is based upon the belief by both Owner and Contractor that: (a) the Project does not have atypically expansive soil or hard rock formations or other conditions that require blasting or jackhammer work; (b) no underground or surface water conditions will interfere with the Project or operation of the completed structure; (c) the Project does not have atypical obstructions which are not readily identifiable from visual inspection of the surface; (d) the Contract Price excludes re-wiring or replacing an existing electrical box, relocating existing overhead or underground wires, or moving or upgrading existing gas lines or meters, unless those items are specifically and expressly included in the Scope of Work; and (f) there will be no material change (greater than ten percent (10%)) in the costs of materials caused by tariffs, a trade war, act of god, or other event that could not reasonably have been anticipated at the time of executing the Contract Documents. In the event that any of the aforementioned conditions are revealed to be incorrect then the Contract Price will be adjusted by a Change Order. Final payment not timely paid shall begin to accrue interest at the rate of five percent (10%) per annum on the 10th day after work completion.
3.2 All changes in the Work, regardless of whether the same would cause an increase or decrease in the Contract Price, shall be agreed to in writing by Contractor and Owner (a “Change Order”) as further described in Article 5 below.
3.3 Payment shall be made in the form of (1) an overnight cashier's check sent to the Contractor’s address listed above, (2) credit / debit card payment online using the Owner's payment processing system, (3) wire transfer to owner’s specified account per the invoice. The Total Contract Price shall be payable in accordance with a series of milestones once Contractor is prepared to begin certain phases of work and a completion payment described in the table below:
PAYMENT SCHEDULE - BUILDINGS
PAYMENT SCHEDULE - ERECTION / ASSEMBLY
PAYMENT SCHEDULE - CONCRETE / SITE WORK
ARTICLE 4: OWNER’S REPRESENTATIONS
4.1 Contractor shall use reasonable efforts to protect trees and shrubs that Owner desires to save; however, Contractor is not responsible for the replanting of trees or other vegetation including sod.
4.2 If site work is required in Scope of Work, Owner shall provide Contractor with an engineered stamped survey of the Project showing all build lines, setbacks, property lines and easements. Contractor will act in reliance upon the contents of the survey provided by Owner, and Owner releases and/or indemnifies Contractor from any liability resulting from errors contained in the survey.
4.3 Owner shall provide Contractor with a site free of debris prior to the commencement of the Project. Furthermore, Owner represents and warrants that it cause the site to be secure and inaccessible at all times during which Contractor is not actively conducting the Work.
4.4 On foundation related scopes of work, Owner shall provide Contractor with a site that is level and does not require further grading. If additional grading is required or the site is not ready for work to begin as scheduled and confirmed between Owner and Contractor, a fee of $1,500 will be applied to Owner’s total contract amount for the mobilization of the Contractor. Additionally, costs related to equipment rental and materials will be charged to Owner.
ARTICLE 5: CHANGES
5.1 Owner may request Contractor to make changes, additions and/or deletions concerning the Work. Upon such request, Contractor shall prepare and deliver to Owner a Change Proposal describing the change and disclosing the adjustment of the Contract Price resulting from such requested change, addition or deletion to the Work. Any of the following shall be deemed Owner’s approval of the Change Proposal: (a) an email or text message exchange between Owner and Contractor in which the changes contained in the Change Proposal are discussed and acknowledged by the parties, (b) Owner’s selections from a supplier or vendor of materials, (c) failure by Owner to reject a Change Proposal within three (3) days after receipt, or (d) execution of the Change Proposal or a Change Order.
5.2 Upon Owner’s approval of a Change Proposal, the Contractor will prepare and deliver a Change Order reflecting the approved change in the Work and/or Contract Price. Contractor shall not be obligated to proceed with any change, addition or deletion to the Work absent a Change Order.
5.3 In the event a Change Order increases the Contract Price, the Owner shall pay for the costs of the Change Order within three (3) business days after Contractor’s delivery of the Change Order. Contractor will not be obliged to proceed with any Work until any Change Order amounts have been paid as agreed.
ARTICLE 6: COMPLIANCE WITH LAWS
6.1 Contractor shall comply with all federal, state and local laws, codes, regulations and ordinances applicable to performance of the Work.
ARTICLE 7: WARRANTIES
7.1 Contractor warrants the Work to be free from defects in workmanship for a period of one year from the date of Completion (the “Limited Warranty”). The Limited Warranty applies to all work performed during the erection and final fabrication of structures. THESE WARRANTY OBLIGATIONS WILL ONLY COMMENCE UPON THE OWNER’S PAYMENT IN FULL OF ALL SUMS OWED TO CONTRACTOR UNDER THE CONTRACT DOCUMENTS AND SUBSTANTIAL COMPLETION OF THE WORK.
7.2 EXCEPT AS PROVIDED IN SECTIONS 7.1 ABOVE, CONTRACTOR MAKES NO OTHER WARRANTY AS TO THE WORK, EXPRESS OR IMPLIED, AND CONTRACTOR EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR INTENDED USE, MERCHANTABILITY, AND ANY OTHER WARRANTY, IMPLIED OR STATUTORY.
7.3 The Limited Warranty and Manufacturers’ Warranties specifically exclude any obligations for: (1) discoloration, cracking, or movement of walks, decks, drives, and/or patios; (2) discoloration, mottling, or staining; (3) defects or failures caused by neglect, mistreatment, or improper usage by Owner and/or Owner’s invitees; (4) damage or destruction caused by any third party; (5) damage or destruction caused by improper maintenance including; (6) damage, cracking, or destruction caused by movement of earth or earth fill; and (7) repairs to system items that are damaged by normal wear and tear.
ARTICLE 8: USE OF THE SITE
8.1 The parties acknowledge that portions of the site may be occupied and/or used by the Owner while the Work is on-going. Owner acknowledges the inherent danger of construction activities and construction sites. Owner shall not enter, and shall prohibit its employees, agents, representatives, invitees and others over whom it may exercise control from entering the area(s) of Contractor’s operations at all times, whether or not work is on-going, and Owner, its employees, agents, representatives, invitees, other contractors, and others over whom it may exercise control shall at all times comply with Contractor’s safety rules, regulations and program requirements. Contractor shall take reasonable precautions to minimize the impact of its Work on Owner’s occupancy and/or use of the site.
8.2 Owner is responsible for ensuring the site is accessible and ready for Contractor’s scope of work. A site that is unable to be worked on (ie: debris, obstacles, etc.) will prevent the Contractor from beginning work and will result in a fee equal to 1% of the contract amount for crew being unable to work. This fee will be due prior to Contractor mobilizing to the site again.
ARTICLE 9: DEFAULT; REMEDIES; TERMINATION
9.1 If Contractor breaches any material provision of the Contract, Owner shall have the right, after giving ten (10) days written notice to Contractor describing in detail any such breach, and upon Contractor’s failure to commence and diligently pursue cure of any such breach after receipt of such notice, to terminate this Contract.
9.2 Neither party shall be liable to the other or in default of this Contract for any failure of performance due to a Force Majeure Event to the extent, but only to the extent, that the party is prevented, hindered or delayed by such causes. A “Force Majeure Event” shall be defined as labor and subcontractor shortage, inability to procure parts, materials or equipment, supply chain frustration, failure of power, flood or other catastrophe, global or natural disasters, pandemic, epidemic, quarantines, public health crisis, strike, riot, insurrection, war, terrorism, restrictive governmental laws, orders or regulations, governmental preemption in connection with a national emergency and any act of God, beyond the control of the performing party. Financial inability to perform shall never be deemed a Force Majeure Event unless it is caused by a moratorium on banking operations.
9.3 Mutual Waiver of Consequential Damages. Owner and Contractor expressly waive any and all claims against the other for indirect, incidental, special and/or consequential damages arising out of or related to this Contract or any breach thereof, including, but not limited to, claims for damages for loss of use, loss of revenue, loss of business, lost profit, interest expense or other financing costs or expenses, or rental costs.
9.4 Limitation of Liability. Owner agrees and acknowledges that any liability of Contractor to Owner arising out of or related to this Contract, regardless of the legal theory of recovery, including but not limited to breach of contract, breach of warranty or tort, and including attorney’s fees, litigation costs, and interest, shall be limited to the total amount paid by Owner to Contractor under this Contract.
9.5 If Owner breaches any material provision of the Contract, which shall include but not be limited to Owner’s failure to make any payment when due hereunder, Contractor shall have the right, after giving ten (10) days written notice to Owner describing in detail any such breach, and upon Owner’s failure to commence and diligently pursue cure of any such breach after receipt of such notice, to stop work under this Contract or to terminate this Contract, and recover from Owner payment for Work performed and for proven loss and damages on Work not performed.
ARTICLE 10: INDEMNIFICATION
10.1 OWNER HEREBY INDEMNIFIES, AND AGREES TO DEFEND AND HOLD HARMLESS CONTRACTOR FROM ANY AND ALL CLAIMS, DEMANDS, DEBTS, ACTIONS, CAUSES OF ACTION, SUITS, OBLIGATIONS, LOSSES, COSTS, EXPENSES, FEES, AND LIABILITIES (INCLUDING REASONABLE ATTORNEY'S FEES, DISBURSEMENTS, AND LITIGATION COSTS) ARISING FROM OR IN CONNECTION WITH OWNER’S BREACH OF ANY TERMS OF THIS CONTRACT OR INJURIES TO PERSONS OR PROPERTY RESULTING FROM THE WORK, OR THE ACTIVITIES OF OWNER OR ITS EMPLOYEES, AGENTS, CONTRACTORS, AFFILIATES, INVITEES, LICENSEE, OR TRESPASSER CONDUCTED ON OR ABOUT THE PROJECT SITE, INCLUDING WITHOUT LIMITATION, FOR ANY RENT LOSS DIRECTLY ATTRIBUTABLE TO ANY DAMAGE TO THE PROJECT SITE CAUSED BY THE CONSTRUCTION OF THE PROJECT, HOWEVER OWNER SHALL NOT BE LIABLE FOR MATTERS RESULTING FROM THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS AGENTS OR EMPLOYEES. THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN SHALL SURVIVE THE TERMINATION OF THIS CONTRACT INDEFINITELY.
ARTICLE 11: DISPUTE RESOLUTION
11.1 The Parties desire prompt, inexpensive and efficient dispute resolution procedures and therefore agree that their disputes shall be governed by the following:
11.2 Mediation-Binding Arbitration/Waiver of Jury Trial. The Owner and Contractor agree that all controversies, claims (and any related settlements), or matters in question arising out of or relating to (i) this Contract, (ii) any breach or termination of this Contract, (iii) the Work, (iv) any acts or omissions by the Contractor (and its officers, directors or agents), and/or (v) any actual or purported representations or warranties, express or implied, relating to the Property and/or the Work (herein referred to collectively as a “Dispute”) shall be submitted to binding arbitration. The Parties will attempt to resolve any Dispute through informal discussions, and the Dispute may be submitted to non-binding mediation under the Construction Industry Mediation Rules of the American Arbitration Association (“AAA”). In the event that one or both Parties do not desire to mediate, or the Dispute is not resolved by direct discussions and/or mediation, the Dispute shall be submitted to the AAA for binding arbitration in accordance with the Construction Industry Arbitration Rules of the AAA. The Parties will share equally all filing fees and administrative costs of the arbitration, however, any Award rendered may equitably reallocate those costs. The arbitration shall be governed by Texas law and the U.S. Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of any provisions of state law that are inconsistent with the application of the Federal Act.
11.3 In rendering the Award, the arbitrator will state the reasons therefor, including any computations of damages or offsets. The Parties agree to abide by any Award rendered by the arbitrator. If the non-prevailing Party fails to comply with the Award, the prevailing Party shall be entitled to seek judicial enforcement of the Award and recover its necessary and reasonable attorney’s fees, in addition to any other relief to which that Party is entitled.
11.4 If either Party employs an attorney in conjunction with a Dispute related to this Contract, a Party who successfully defends or prosecutes any such claim, or portion of a claim is entitled to reimbursement from the other Party for necessary and reasonable attorneys’ fees, arbitration fees, court costs, expert witness fees, and expenses related to the specific claims successfully defended and/or prosecuted.
ARTICLE 12: MISCELLANEOUS
12.1 This Contract and the Contract Documents, insofar as they relate in any part or in any way to the Work undertaken therein, constitute the entire agreement between the parties hereto, and it is expressly understood and agreed that there are no agreements or promises by and between said parties, verbal or written, except as aforesaid, and that any additions thereto or changes shall be in writing signed by the parties.
12.2 The provisions of this Contract shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and the intent of the parties, but if for any reason any provision is unenforceable or invalid, such provisions shall be deemed severed from this Contract and the remaining provisions shall be carried out with the same force and effect as if the severed provision had not been part of this Contract.
12.3 Unless provided otherwise herein, all notices required by this Contract shall be in writing and shall be delivered or mailed by registered mail, return receipt requested, and shall be deemed to have been given on the date of its delivery, if delivered, and on the fifth full business day following the date of the mailing, if mailed to appropriate party at the address listed in this Contract or such other address as may be specified in any notice delivered to the other party as prescribed in this Section.
12.4 NO LABOR OR MATERIAL HAS BEEN FURNISHED UNDER THIS CONTRACT PRIOR TO EXECUTION.
12.5 WAIVER OF THE LIST OF SUBCONTRACTORS AND SUPPLIERS: AN OWNER IS NOT REQUIRED TO WAIVE THE RIGHT GRANTED BY SECTION 53.256, PROPERTY CODE, TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. BY SIGNING THIS DOCUMENT, YOU AGREE TO WAIVE YOUR RIGHT TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. YOU UNDERSTAND AND ACKNOWLEDGE THAT, AFTER SIGNING THIS DOCUMENT, THIS WAIVER MAY NOT BE CANCELED AT A LATER DATE. YOU HAVE VOLUNTARILY CONSENTED TO THIS WAIVER.
12.6 IMPORTANT NOTICE: YOU AND YOUR CONTRACTOR ARE RESPONSIBLE FOR MEETING THE TERMS AND CONDITIONS OF THIS CONTRACT. IF YOU SIGN THIS CONTRACT AND YOU FAIL TO MEET THE TERMS AND CONDITIONS OF THIS CONTRACT, YOU MAY LOSE YOUR LEGAL OWNERSHIP RIGHTS TO YOUR PROPERTY. KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW.
12.7 YOU, OWNER, MAY CANCEL THIS TRANSACTION BY WRITTEN NOTICE TO THE OWNER AT ANY TIME BEFORE MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF EXECUTING THIS CONTRACT.
LAST UPDATED 2/1/2023
ARTICLE 1: CONTRACT DOCUMENTS
1.1 The documents comprising the agreement between Owner and Contractor shall consist of the documents listed at 1.2 below (collectively referred to as the “Contract Documents”), which documents are hereby incorporated by reference into, and made a part of, this Contract, and, unless otherwise expressly set forth herein, all references to the Contract shall be deemed to refer to all of the Contract Documents.
1.2 In the event of any conflict among the Contract Documents, the Contract Documents shall govern in the following order of priority:
(1) Modifications in writing and signed by both parties, including any Change Orders;
(2) This Contract;
(3) Contractor’s Scope of Work/Estimate incorporated herein.
ARTICLE 2: THE WORK AND EXCLUSIONS
2.1 The Contractor shall furnish all labor, supervision, materials, equipment, tools, supplies, and temporary facilities as required by the Contract Documents for the work as described in the Scope of Work above, hereinafter referred to as the “Work”.
Unless identified as an explicit line item in the Scope of Work above, the building steel and all bolting as well as all site work and concrete work including foundations and/or footings shall be furnished by the Owner.
2.2 All Work shall be performed in accordance with the Contract Documents. Any inconsistencies or conflicts within the Contract Documents shall be resolved by the Contractor in its reasonable discretion. If a detail of the construction is not specified within the Contract Documents, or should an alternative building practice be available in lieu of a specified procedure, the Contractor may select a construction procedure that complies with industry standards and sound engineering practices. All building measurements are approximate within reasonable tolerance. Unless otherwise specified in writing, materials used by the Contractor in the construction of the Project shall be as prescribed in the Contract Documents, subject to substitution at Contractor’s election should an item not be reasonably available or if its procurement would cause undue delay of the Work. Any substitutions shall be of comparable grade and quality. The construction of the Work is subject to changes in the Contract Documents as required by any governmental authorities.
2.3 If Contractor encounters conditions at the site which are subsurface or otherwise concealed physical conditions which differ from those indicated in the Contract Documents, or which are unknown physical conditions, or differ from those ordinarily found to exist and generally recognized as inherent in construction activities of the type provided for herein, then Contractor shall promptly notify Owner of same, before conditions are disturbed and in no event later than two (2) business days after observance of such conditions. If such conditions will cause an increase in Contractor’s cost and/or time required for performance of the Work, Owner shall execute a Change Order increasing the Contract Price and/or extending the Contract Time.
2.4 No additional grading of the site shall be performed unless otherwise expressly specified. The Owner shall pay the costs for any permit that must be obtained in order for the Contractor to proceed with the Work.
2.5 Owner to contact 811 prior to any underground work for all utility marking before any concrete work to take place, where applicable.
ARTICLE 3: CONTRACT PRICE
3.1 The Owner shall pay the Contractor in current funds for the Contractor's performance of the Work on a “Lump Sum” basis. It is the intent of the parties that the Owner pay Contractor the contract price set forth in the Scope of Work section of this document (the “Contract Price”). The Contract Price is based upon the belief by both Owner and Contractor that: (a) the Project does not have atypically expansive soil or hard rock formations or other conditions that require blasting or jackhammer work; (b) no underground or surface water conditions will interfere with the Project or operation of the completed structure; (c) the Project does not have atypical obstructions which are not readily identifiable from visual inspection of the surface; (d) the Contract Price excludes re-wiring or replacing an existing electrical box, relocating existing overhead or underground wires, or moving or upgrading existing gas lines or meters, unless those items are specifically and expressly included in the Scope of Work; and (f) there will be no material change (greater than ten percent (10%)) in the costs of materials caused by tariffs, a trade war, act of god, or other event that could not reasonably have been anticipated at the time of executing the Contract Documents. In the event that any of the aforementioned conditions are revealed to be incorrect then the Contract Price will be adjusted by a Change Order. Final payment not timely paid shall begin to accrue interest at the rate of five percent (10%) per annum on the 10th day after work completion.
3.2 All changes in the Work, regardless of whether the same would cause an increase or decrease in the Contract Price, shall be agreed to in writing by Contractor and Owner (a “Change Order”) as further described in Article 5 below.
3.3 Payment shall be made in the form of (1) an overnight cashier's check sent to the Contractor’s address listed above, (2) credit / debit card payment online using the Owner's payment processing system, (3) wire transfer to owner’s specified account per the invoice. The Total Contract Price shall be payable in accordance with a series of milestones once Contractor is prepared to begin certain phases of work and a completion payment described in the table below:
PAYMENT SCHEDULE - BUILDINGS
- 25% initial deposit to be paid to begin engineering design.
- 75% at design approval & fabrication start.
PAYMENT SCHEDULE - ERECTION / ASSEMBLY
- 25% initial deposit to be paid to schedule crews and equipment for arrival.
- 60% at majority completion of wall sheets (>50%).
- 25% at completion of trim installation.
PAYMENT SCHEDULE - CONCRETE / SITE WORK
- 25% initial deposit to be paid to schedule crews and equipment for arrival.
- 60% at completion of forming of the concrete slab/footings/rebar (ready to pour).
- 15% at day of completion of pour.
ARTICLE 4: OWNER’S REPRESENTATIONS
4.1 Contractor shall use reasonable efforts to protect trees and shrubs that Owner desires to save; however, Contractor is not responsible for the replanting of trees or other vegetation including sod.
4.2 If site work is required in Scope of Work, Owner shall provide Contractor with an engineered stamped survey of the Project showing all build lines, setbacks, property lines and easements. Contractor will act in reliance upon the contents of the survey provided by Owner, and Owner releases and/or indemnifies Contractor from any liability resulting from errors contained in the survey.
4.3 Owner shall provide Contractor with a site free of debris prior to the commencement of the Project. Furthermore, Owner represents and warrants that it cause the site to be secure and inaccessible at all times during which Contractor is not actively conducting the Work.
4.4 On foundation related scopes of work, Owner shall provide Contractor with a site that is level and does not require further grading. If additional grading is required or the site is not ready for work to begin as scheduled and confirmed between Owner and Contractor, a fee of $1,500 will be applied to Owner’s total contract amount for the mobilization of the Contractor. Additionally, costs related to equipment rental and materials will be charged to Owner.
ARTICLE 5: CHANGES
5.1 Owner may request Contractor to make changes, additions and/or deletions concerning the Work. Upon such request, Contractor shall prepare and deliver to Owner a Change Proposal describing the change and disclosing the adjustment of the Contract Price resulting from such requested change, addition or deletion to the Work. Any of the following shall be deemed Owner’s approval of the Change Proposal: (a) an email or text message exchange between Owner and Contractor in which the changes contained in the Change Proposal are discussed and acknowledged by the parties, (b) Owner’s selections from a supplier or vendor of materials, (c) failure by Owner to reject a Change Proposal within three (3) days after receipt, or (d) execution of the Change Proposal or a Change Order.
5.2 Upon Owner’s approval of a Change Proposal, the Contractor will prepare and deliver a Change Order reflecting the approved change in the Work and/or Contract Price. Contractor shall not be obligated to proceed with any change, addition or deletion to the Work absent a Change Order.
5.3 In the event a Change Order increases the Contract Price, the Owner shall pay for the costs of the Change Order within three (3) business days after Contractor’s delivery of the Change Order. Contractor will not be obliged to proceed with any Work until any Change Order amounts have been paid as agreed.
ARTICLE 6: COMPLIANCE WITH LAWS
6.1 Contractor shall comply with all federal, state and local laws, codes, regulations and ordinances applicable to performance of the Work.
ARTICLE 7: WARRANTIES
7.1 Contractor warrants the Work to be free from defects in workmanship for a period of one year from the date of Completion (the “Limited Warranty”). The Limited Warranty applies to all work performed during the erection and final fabrication of structures. THESE WARRANTY OBLIGATIONS WILL ONLY COMMENCE UPON THE OWNER’S PAYMENT IN FULL OF ALL SUMS OWED TO CONTRACTOR UNDER THE CONTRACT DOCUMENTS AND SUBSTANTIAL COMPLETION OF THE WORK.
7.2 EXCEPT AS PROVIDED IN SECTIONS 7.1 ABOVE, CONTRACTOR MAKES NO OTHER WARRANTY AS TO THE WORK, EXPRESS OR IMPLIED, AND CONTRACTOR EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR INTENDED USE, MERCHANTABILITY, AND ANY OTHER WARRANTY, IMPLIED OR STATUTORY.
7.3 The Limited Warranty and Manufacturers’ Warranties specifically exclude any obligations for: (1) discoloration, cracking, or movement of walks, decks, drives, and/or patios; (2) discoloration, mottling, or staining; (3) defects or failures caused by neglect, mistreatment, or improper usage by Owner and/or Owner’s invitees; (4) damage or destruction caused by any third party; (5) damage or destruction caused by improper maintenance including; (6) damage, cracking, or destruction caused by movement of earth or earth fill; and (7) repairs to system items that are damaged by normal wear and tear.
ARTICLE 8: USE OF THE SITE
8.1 The parties acknowledge that portions of the site may be occupied and/or used by the Owner while the Work is on-going. Owner acknowledges the inherent danger of construction activities and construction sites. Owner shall not enter, and shall prohibit its employees, agents, representatives, invitees and others over whom it may exercise control from entering the area(s) of Contractor’s operations at all times, whether or not work is on-going, and Owner, its employees, agents, representatives, invitees, other contractors, and others over whom it may exercise control shall at all times comply with Contractor’s safety rules, regulations and program requirements. Contractor shall take reasonable precautions to minimize the impact of its Work on Owner’s occupancy and/or use of the site.
8.2 Owner is responsible for ensuring the site is accessible and ready for Contractor’s scope of work. A site that is unable to be worked on (ie: debris, obstacles, etc.) will prevent the Contractor from beginning work and will result in a fee equal to 1% of the contract amount for crew being unable to work. This fee will be due prior to Contractor mobilizing to the site again.
ARTICLE 9: DEFAULT; REMEDIES; TERMINATION
9.1 If Contractor breaches any material provision of the Contract, Owner shall have the right, after giving ten (10) days written notice to Contractor describing in detail any such breach, and upon Contractor’s failure to commence and diligently pursue cure of any such breach after receipt of such notice, to terminate this Contract.
9.2 Neither party shall be liable to the other or in default of this Contract for any failure of performance due to a Force Majeure Event to the extent, but only to the extent, that the party is prevented, hindered or delayed by such causes. A “Force Majeure Event” shall be defined as labor and subcontractor shortage, inability to procure parts, materials or equipment, supply chain frustration, failure of power, flood or other catastrophe, global or natural disasters, pandemic, epidemic, quarantines, public health crisis, strike, riot, insurrection, war, terrorism, restrictive governmental laws, orders or regulations, governmental preemption in connection with a national emergency and any act of God, beyond the control of the performing party. Financial inability to perform shall never be deemed a Force Majeure Event unless it is caused by a moratorium on banking operations.
9.3 Mutual Waiver of Consequential Damages. Owner and Contractor expressly waive any and all claims against the other for indirect, incidental, special and/or consequential damages arising out of or related to this Contract or any breach thereof, including, but not limited to, claims for damages for loss of use, loss of revenue, loss of business, lost profit, interest expense or other financing costs or expenses, or rental costs.
9.4 Limitation of Liability. Owner agrees and acknowledges that any liability of Contractor to Owner arising out of or related to this Contract, regardless of the legal theory of recovery, including but not limited to breach of contract, breach of warranty or tort, and including attorney’s fees, litigation costs, and interest, shall be limited to the total amount paid by Owner to Contractor under this Contract.
9.5 If Owner breaches any material provision of the Contract, which shall include but not be limited to Owner’s failure to make any payment when due hereunder, Contractor shall have the right, after giving ten (10) days written notice to Owner describing in detail any such breach, and upon Owner’s failure to commence and diligently pursue cure of any such breach after receipt of such notice, to stop work under this Contract or to terminate this Contract, and recover from Owner payment for Work performed and for proven loss and damages on Work not performed.
ARTICLE 10: INDEMNIFICATION
10.1 OWNER HEREBY INDEMNIFIES, AND AGREES TO DEFEND AND HOLD HARMLESS CONTRACTOR FROM ANY AND ALL CLAIMS, DEMANDS, DEBTS, ACTIONS, CAUSES OF ACTION, SUITS, OBLIGATIONS, LOSSES, COSTS, EXPENSES, FEES, AND LIABILITIES (INCLUDING REASONABLE ATTORNEY'S FEES, DISBURSEMENTS, AND LITIGATION COSTS) ARISING FROM OR IN CONNECTION WITH OWNER’S BREACH OF ANY TERMS OF THIS CONTRACT OR INJURIES TO PERSONS OR PROPERTY RESULTING FROM THE WORK, OR THE ACTIVITIES OF OWNER OR ITS EMPLOYEES, AGENTS, CONTRACTORS, AFFILIATES, INVITEES, LICENSEE, OR TRESPASSER CONDUCTED ON OR ABOUT THE PROJECT SITE, INCLUDING WITHOUT LIMITATION, FOR ANY RENT LOSS DIRECTLY ATTRIBUTABLE TO ANY DAMAGE TO THE PROJECT SITE CAUSED BY THE CONSTRUCTION OF THE PROJECT, HOWEVER OWNER SHALL NOT BE LIABLE FOR MATTERS RESULTING FROM THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS AGENTS OR EMPLOYEES. THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN SHALL SURVIVE THE TERMINATION OF THIS CONTRACT INDEFINITELY.
ARTICLE 11: DISPUTE RESOLUTION
11.1 The Parties desire prompt, inexpensive and efficient dispute resolution procedures and therefore agree that their disputes shall be governed by the following:
11.2 Mediation-Binding Arbitration/Waiver of Jury Trial. The Owner and Contractor agree that all controversies, claims (and any related settlements), or matters in question arising out of or relating to (i) this Contract, (ii) any breach or termination of this Contract, (iii) the Work, (iv) any acts or omissions by the Contractor (and its officers, directors or agents), and/or (v) any actual or purported representations or warranties, express or implied, relating to the Property and/or the Work (herein referred to collectively as a “Dispute”) shall be submitted to binding arbitration. The Parties will attempt to resolve any Dispute through informal discussions, and the Dispute may be submitted to non-binding mediation under the Construction Industry Mediation Rules of the American Arbitration Association (“AAA”). In the event that one or both Parties do not desire to mediate, or the Dispute is not resolved by direct discussions and/or mediation, the Dispute shall be submitted to the AAA for binding arbitration in accordance with the Construction Industry Arbitration Rules of the AAA. The Parties will share equally all filing fees and administrative costs of the arbitration, however, any Award rendered may equitably reallocate those costs. The arbitration shall be governed by Texas law and the U.S. Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of any provisions of state law that are inconsistent with the application of the Federal Act.
11.3 In rendering the Award, the arbitrator will state the reasons therefor, including any computations of damages or offsets. The Parties agree to abide by any Award rendered by the arbitrator. If the non-prevailing Party fails to comply with the Award, the prevailing Party shall be entitled to seek judicial enforcement of the Award and recover its necessary and reasonable attorney’s fees, in addition to any other relief to which that Party is entitled.
11.4 If either Party employs an attorney in conjunction with a Dispute related to this Contract, a Party who successfully defends or prosecutes any such claim, or portion of a claim is entitled to reimbursement from the other Party for necessary and reasonable attorneys’ fees, arbitration fees, court costs, expert witness fees, and expenses related to the specific claims successfully defended and/or prosecuted.
ARTICLE 12: MISCELLANEOUS
12.1 This Contract and the Contract Documents, insofar as they relate in any part or in any way to the Work undertaken therein, constitute the entire agreement between the parties hereto, and it is expressly understood and agreed that there are no agreements or promises by and between said parties, verbal or written, except as aforesaid, and that any additions thereto or changes shall be in writing signed by the parties.
12.2 The provisions of this Contract shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and the intent of the parties, but if for any reason any provision is unenforceable or invalid, such provisions shall be deemed severed from this Contract and the remaining provisions shall be carried out with the same force and effect as if the severed provision had not been part of this Contract.
12.3 Unless provided otherwise herein, all notices required by this Contract shall be in writing and shall be delivered or mailed by registered mail, return receipt requested, and shall be deemed to have been given on the date of its delivery, if delivered, and on the fifth full business day following the date of the mailing, if mailed to appropriate party at the address listed in this Contract or such other address as may be specified in any notice delivered to the other party as prescribed in this Section.
12.4 NO LABOR OR MATERIAL HAS BEEN FURNISHED UNDER THIS CONTRACT PRIOR TO EXECUTION.
12.5 WAIVER OF THE LIST OF SUBCONTRACTORS AND SUPPLIERS: AN OWNER IS NOT REQUIRED TO WAIVE THE RIGHT GRANTED BY SECTION 53.256, PROPERTY CODE, TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. BY SIGNING THIS DOCUMENT, YOU AGREE TO WAIVE YOUR RIGHT TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS. YOU UNDERSTAND AND ACKNOWLEDGE THAT, AFTER SIGNING THIS DOCUMENT, THIS WAIVER MAY NOT BE CANCELED AT A LATER DATE. YOU HAVE VOLUNTARILY CONSENTED TO THIS WAIVER.
12.6 IMPORTANT NOTICE: YOU AND YOUR CONTRACTOR ARE RESPONSIBLE FOR MEETING THE TERMS AND CONDITIONS OF THIS CONTRACT. IF YOU SIGN THIS CONTRACT AND YOU FAIL TO MEET THE TERMS AND CONDITIONS OF THIS CONTRACT, YOU MAY LOSE YOUR LEGAL OWNERSHIP RIGHTS TO YOUR PROPERTY. KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW.
12.7 YOU, OWNER, MAY CANCEL THIS TRANSACTION BY WRITTEN NOTICE TO THE OWNER AT ANY TIME BEFORE MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF EXECUTING THIS CONTRACT.
LAST UPDATED 2/1/2023