Construction Terms & Conditions
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#1 Work
Change Orders. The Contractor shall perform the Work for Owner for the Project (as defined in the Proposal). If Owner enters a separate contract or agreement with an architect or designer (each, shall be considered “Architect”) to assist Owner in the designs related to the Project, such details and scope of the Architect will be set forth in the Proposal, provided, however nothing herein shall be construed to create a contractual relationship of any kind between the Contractor and the Architect or the Architect’s consultants. The Owner, without invalidating the Agreement, may request a change order for the Work within the general scope of the Agreement, consisting of additions, deletions, modifications, or other revisions, with the total price of the Agreement and the Project schedule time being adjusted accordingly (“Change Order”). Change Orders shall be authorized by written documentation signed by the Owner and Contractor, or signed by the Owner and the Architect, if applicable. Pending final determination of the total cost of a Change Order, the Contractor may request payment for Work completed pursuant to the Change Order.
#2 Safety Precautions
The Contractor shall initiate, maintain, and supervise the safety precautions and programs in connection with the performance of the Work. In an emergency affecting the safety of persons or property during the performance of the Work, the Contractor shall act, at the Contractor’s discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined between the parties.
#3 Permits
Unless otherwise indicated in the Proposal, the Contractor agrees to obtain all necessary and required permits in connection with the Work, but the Owner shall be responsible for all related costs to such permits. The Owner shall reasonably cooperate and assist the Contractor as necessary with any information that the Contractor may need to obtain any permit related to the Work promptly.
#4 Schedule
Delays. The Contractor shall perform the Work in accordance with the Project schedule in the Proposal, subject to reasonable extension for delays beyond the control of the Contractor. Contractor shall not be responsible for delays as a result of the Owner’s delay in obtaining required permits. If the Contractor is delayed at any time in the commencement or progress of the Work by (i) an act or neglect of the Owner or Architect (if applicable), of an employee of either, or of a separate contractor; (ii) by changes ordered in the Work; or (iii) by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions documented in accordance with Section 25.1 or other causes beyond the Contractor’s control, then the Project schedule shall be extended to the equal duration that the Project was delayed, or another mutually agreed upon time. The Contractor shall be entitled to seek damages and/or an increase in compensation as a result of such delays described herein.
#5 Title
The Contractor shall retain title to all materials and equipment furnished in connection with the Work until Owner makes final payment in accordance with the Agreement.
#6 Owner Representations & Warranties
Owner represents and warrants that: (i) it is the owner of the real property upon which the Work shall be performed; (ii) it is having the Work performed within the Owner’s property lines and clear of any easements; (iii) it will comply with all applicable laws, statutes, rules, regulations, codes, and ordinances in connection with the Work and Project; (iv) it is familiar with the subsurface, physical conditions, and the presence or potential presence of hazardous materials of the location where Contractor will be performing the Work, and the placement of the Work is suitable for the Project to be performed; and (v) Contractor can reasonably rely on the accuracy of the information provided by the Owner in connection with this Agreement.
#7 Owner Responsibilities
The Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for the construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. The Owner shall furnish surveys describing physical characteristics, legal limitations, and utility locations for the Project site, and a legal description of the Project site. The Owner shall provide evidence of adequate financial resources or third-party financing for the Project. The Owner shall promptly provide information as requested by the Contractor in connection with the Work promptly. The Owner shall be responsible for following all manufacturer’s instructions for the proper care and maintenance of the Work upon the Contractor’s completion of the Work. The Owner is required and solely responsible for obtaining approval from any applicable homeowner association or other governing bodies. Upon request, Owner shall provide all existing soil reports, at its own expense, for the location where the Work is to be performed. The Owner shall be responsible for clearing the site in preparation for the Work, including any obstructions or obstacles that would hinder or interfere with the performance of the Work by the Contractor or any of its subcontractors. The Owner shall be responsible for providing the Contractor with clear site access where the Work will be performed, including, but not limited to, any materials or equipment that require delivery. Any damage that results while the Contractor is trying to access the site shall be the responsibility of the Owner.
#8 Architect
This section shall only be applicable if the Owner engages and contracts with an Architect. The Owner shall retain an Architect lawfully licensed to practice architecture or an entity lawfully practicing architecture in the jurisdiction where the Project is located. If the contract between the Owner and Architect is terminated, the Owner shall contract a successor architect whose status under the Proposal shall be that of the Architect. The Architect will visit the Project site at intervals appropriate to the stage of construction, or as otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine in general if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Proposal. The Contractor shall provide the Owner and Architect access to the Work in preparation and progress, wherever located. The Owner shall provide all approvals of any of the designs, drawings, or specifications provided by its Architect.
#9 Contractor Representations, Warranties, & Responsibilities
The Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located. Contractor represents and warrants that: (i) it has the expertise, knowledge, ability, and is qualified to render the Work required under the Proposal; (ii) it shall comply with all applicable laws, statutes, ordinances, codes, rules and regulations applicable to performance of the Work; and (iii) the materials and equipment furnished under the Agreement will be of good quality and new, unless the Proposal require or permit otherwise.
#10 Concealed or Unknown Conditions
If the Contractor encounters conditions at the Project site that are (i) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Proposal or (ii) unknown physical conditions of an unusual nature that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Proposal, the Contractor shall provide notice to the Owner before conditions are disturbed, and in no event later than fourteen days after first observance of the conditions. If the parties agree that such conditions differ materially and cause an increase or decrease in the Contractor’s cost of, or time required for, performance of any part of the Work, Contractor shall be entitled to an equitable adjustment in the total price of the Agreement, time to perform the Work, or both.
#11 Payment
Owner agrees to pay Contractor for the Work in accordance with the payment terms and payment milestones set forth in the Proposal. Contractor does not accept any cash payments related to the Project, and Owner shall pay Contractor by ACH, wire, check, or credit card, which shall have a 3.5% processing fee on each charge. All payments for the Project shall be made only in US Dollars. Any late payments shall be subject to interest in accordance with the applicable rate set forth in the Proposal or, in the absence thereof, the statutory rate where the Project is located. The Owner’s failure to make timely payments in accordance with the Proposal is necessary to avoid delays in the Project schedule. All pricing listed in the Proposal is subject to change due to market pricing and availability at the time of performance of the Work. Retainage shall not be withheld from any payments due to the Contractor.
#12 Evidence of Owner’s Financial Arrangements
The Contractor may request that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill Owner’s obligations under the Agreement (i) prior to the execution of the Agreement, (ii) if the Owner fails to make payments to the Contractor in accordance with the payment terms in the Proposal, or (iii) a change in the Work materially changes the total price of the Agreement.
#13 Messaging Terms and Conditions
You agree to receive informational messages (appointment reminders, account notifications, service updates, and promotions) from Pelican Pools. Message frequency may vary. Message and data rates may apply. For help, reply HELP or email [email protected] You may opt out at any time by replying STOP. Once you opt out, no further messages will be sent.
#14 Subcontracts and Other Agreements
Those portions of the Work that the Contractor does not customarily perform with the Contractor’s own personnel shall be performed under subcontracts or other appropriate agreements with the Contractor.
#15 Clean-Up
Contractor shall keep the premises and the surrounding area free from the accumulation of waste materials or rubbish caused by operations under the Agreement. At completion of the Work, the Contractor shall remove waste materials, rubbish, the Contractor’s tools, construction equipment, machinery, and surplus material from the Project.
#16 Liens
Owner acknowledges and agrees that in the event Owner fails to pay Contractor in full any amount due under this Agreement to Owner or any subcontractor hired in accordance to perform the Work, then the Contractor or the hired subcontractor may have a claim against the Owner and shall have the right to file any liens against the property where the Work was performed in accordance with all applicable laws. The lien rights provided herein to Owner shall not be Owner’s exclusive remedy and is in addition to any other rights and remedies it may have under the Agreement, at law or in equity, and nothing in this Agreement shall limit any rights or remedies not expressly waived by the Contractor which the Contractor may have under applicable lien laws.
#17 Indemnification
#17.1 By Contractor
Provided that Owner has fulfilled its payment obligations under this Agreement, Contractor shall indemnify and hold the Owner, and their respective agents, harmless from all damage, liability, claim or expense (including reasonable attorneys’ fees) resulting from injury to person (including death) or damage to property, arising out of the direct performance of the Work by the Contractor, its employees, or subcontractors, but only to the extent caused by the negligent acts or omissions of the Contractor, its employees, or its subcontractors. Contractor’s indemnity obligation shall not apply to any claims, damage, or liability arising out of Architect’s work, performance, or nonperformance, including, but not limited to Architect’s drawings, designs, or specifications. To the extent permitted by law, Owner acknowledges and agrees that any claim or action arising out of the Work or this Agreement must be filed within one (1) year after the cause of action arose or forever be barred.
#17.2 By Owner
Owner shall indemnify and hold harmless the Contractor, subcontractors, Architect (if applicable), and agents and employees of any of them from and against claims, damages, losses, and expenses, including but not limited to reasonable attorneys’ fees, arising out of or resulting from the performance of the Work if any concealed or unknown condition, material, or substance presents the risk of bodily injury or death, provided that such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), except to the extent that such damage, loss, or expense is due to the fault or negligence of the party seeking indemnity.
#18 Insurance
The Contractor will maintain adequate insurance coverage in connection with the Work to be performed under this Agreement. Contractor maintains workers’ compensation coverage as required by law and commercial general liability coverage. Contractor shall provide a copy of its insurance coverage upon the Owner’s request.
#19 Warranty
The Contractor warrants that the Work furnished under this Agreement will be free from defects due to the material and workmanship. The Contractor warrants to the Owner that the Work will be new and of good quality unless the Proposal requires or permits otherwise. The Contractor warrants that the materials used will be of standard quality, and the Work will be performed in a workmanlike manner customary with the location of where the Work is to be performed. All warranties provided herein by Contractor are limited to one (1) year from the date Contractor completes the Work (“Warranty Period”). If at any time during the Warranty Period, it appears that the Work or any part thereof does not conform to these warranties herein, the Owner shall notify the Contractor no more than thirty (30) days after such discovery. Notwithstanding the foregoing, if Owner provides written notice to Contractor of a defect in material or workmanship during the Warranty Period and Contractor has been paid in full and final payment has been received by Contractor for the Work under this Agreement, Owner’s sole and exclusive remedy and Contractor’s sole and exclusive obligation is to correct, repair, or replace the defective material or workmanship at Contractor’s own cost. For all corrections, repairs, or replacements during the Warranty Period, if such travel for such warranty Work to be performed is more than 20 miles away from the Contractor’s main office, then the Owner shall be responsible for travel costs, unless otherwise agreed to in writing. Nothing herein shall extend the Warranty Period, including but not limited to any remedial Work performed by the Contractor. The warranties provided herein in this Section 18 are for a limited period and are non-transferable to a subsequent or future owner. All warranties provided herein are personal to the Owner. Contractor shall not be responsible to correct, repair, or replace any Work where the damage or defect results from: (i) interference, alterations or modifications to the Work performed by the Owner or other non-Contractor parties, (ii) insufficient maintenance or failure to perform normal maintenance, (iii) improper operation, including any monitoring or cleaning as required by the Proposal, (iv) misuse or abuse of the Work, and (v) normal wear and tear. The Contractor shall not be responsible for any work or material furnished or installed by any other contractor or other third party. All manufacturers’ warranties shall apply, but Owner shall undertake to secure any warranty from any manufacturer with no obligation upon the Contractor to intervene. For the avoidance of doubt, Contractor shall not be responsible for any pre-existing conditions related to the Work or for any damage or defect brought after the expiration of the Warranty Period.
#20 Disclaimer
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, CONTRACTOR DISCLAIMS AND OWNER WAIVES ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE WORK, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF CONTRACTOR HAS BEEN INFORMED OF SUCH PURPOSE. CONTRACTOR HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR ANY WARRANTIES INCLUDED IN THE PROPOSAL FROM ANY SUPPLIER THAT PROVIDES A WARRANTY LONGER THAN CONTRACTOR’S WARRANTY PERIOD. CONTRACTOR DISCLAIMS ALL RESPONSIBILITY FOR ANY VANDALISM.
#21 Limitation of Liability
Waiver of Consequential Damages. In no event shall Contractor be liable to Owner for any special, indirect, incidental, consequential, or punitive damages of any character, including but not limited to damages claimed for loss of use of productive facilities or equipment, lost profits, governmental fines or penalties, lost production, or non-operation or increased expense of operation, irrespective of whether claims or actions for such damages are based upon contract, warranty, negligence, strict liability, indemnity, or otherwise.
#22 Termination by the Owner for Convenience
The Owner may, at any time, terminate the Agreement for the Owner’s convenience and without cause by providing written notice to the Contractor as set forth in the Proposal. The Contractor shall be entitled to receive payment for all Work performed and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed. To the extent that any of the materials furnished in connection with the Work are non-refundable, Owner shall be responsible for the full cost of all non-refundable materials. Upon receipt of notice from the Owner of such termination for the Owner’s convenience, the Contractor shall (i) cease operations as directed by the Owner in the notice; (ii) take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and (iii) except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders.
#23 Termination for Cause
The Contractor shall have the right to terminate this Agreement for cause if: (i) the Owner fails to make timely payments in accordance with this Agreement, which shall be considered a default under this Agreement; (ii) the Owner fails to furnish evidence that Owner can adhere to the financial obligations required under this Agreement, upon request by Contractor; (iii) the Owner commits a material breach or default of this Agreement, and such breach or default is not cured within forty-eight hours of Contractor’s written notice to Owner; (iv) the Work is stopped for a period of thirty consecutive days through no act or fault of the Contractor, a subcontractor, their agents or employees; or (v) the issuance of an order of a court or other public authority having jurisdiction that requires all Work to be stopped. If Contractor terminates for cause, Owner shall immediately pay all the amounts due under this Agreement for the Work provided by the effective date of termination and any non-refundable items. Termination is not the Contractor’s exclusive remedy and is in addition to any other rights and remedies it may have under the Agreement, at law, or in equity. Failure of Contractor to exercise any of its rights under this Section shall not excuse Owner from compliance with the provisions of the Agreement nor prejudice rights of Contractor to recover damages for such default or breach.
#24 Survival
Subject to the terms of this Agreement, Sections 15 (Liens), 18 (Warranty), 19 (Disclaimer), 20 (Limitation of Liability; Waiver of Consequential Damages), 22 (Termination for Cause), 25 (Miscellaneous), and any other terms which by their nature extend beyond: (i) the termination or expiration of the Agreement, or (ii) the completion of the Work shall survive termination of this Agreement.
#25 Suspension
The Contractor shall have the right to suspend the Work if Owner fails to pay Contractor any payment due under this Agreement for reasons not attributable to Contractor. The Contractor may suspend all or any portion of the Work until such payments are paid. The Contractor shall be entitled to seek any costs that Contractor may occur as a result of such suspension including, but not limited to (i) costs for securing and protecting the Work in place during the suspension period, (ii) costs of demobilizing and remobilizing labor forces and equipment, if necessary, and (iii) any subcontractor costs if the suspension flows down to affect subcontractor’s work.
#26 Miscellaneous
#26.1 Force Majeure
Notwithstanding any provision to the contrary contained in this Agreement, neither party shall be liable to the other party for any loss, damage or delay due to any cause beyond either party’s reasonable control, including, but not limited to, acts of government, strikes, lockouts, other labor disputes, theft, weather, including but not limited to freezing and other natural occurrences, ground movement, natural or man-made disaster, civil commotion, mischief or act of God.
#26.2 Price Fluctuations
The Owner acknowledges and agrees that the pricing included in the Proposal has been based on anticipated costs of materials; however, price fluctuations caused by, but not limited to, inflation, changes in tax rates, tariffs, and currency exchange rates can significantly alter these anticipated costs. The Owner understands that this is particularly relevant if inquiries and agreements are made many months in advance, prior to the Contractor’s performance of the Work. In the event of a price fluctuation that modifies or alters the price of the Proposal, Contractor will be notified in writing of such price changes and given the choice to pay the increased amount; cancel your order forfeiting your paid deposit; request changes be made to original quantities and designs to bring the costs back in line with the original Proposal. Contractor shall have the right to assess and modify the price of the Work during the schedule of the Work to be performed due to market pricing fluctuations.
#26.3 Independent Contractor
The relationship between Owner and Contractor is that of an independent contractor. Nothing in this Agreement shall be construed as creating a relationship between Owner and Contractor of joint venturers, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.
#26.4 Waiver
None of the provisions of the Agreement shall be considered waived by either party unless such waiver is given in writing by the other party. No such waiver shall be a waiver of any past or future default, breach or modification of any of the terms, provisions, conditions or covenants of the Agreement unless expressly set forth in such waiver.
#26.5 Ammendments; Counterpart
This Agreement may only be amended, modified, or supplemented by a written agreement signed by each party hereto. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. This Agreement may be executed by electronic means (scanned and sent via e-mail or signed by electronic signature service, where legally permitted) and it shall be deemed original signatures for all purposes. An electronic signature shall be given the same effect as a written signature.
#26.6 Assignments
The Owner may not assign this Agreement in whole or in part. Any assignment by the Owner shall be considered null and void.
#26.7 Attorney Fees
In the event of any court action conducted hereunder, the prevailing party shall be entitled to recover from the losing party all fees and expenses incurred by the prevailing party in connection with the court action, including all costs, expenses, and attorney’s fees.
#26.8 Advertising; Photography
Contractor shall have the right to take photographs at the Project site of both completed Work and Work in progress, for purposes including, but not limited to, publication in newspapers, magazines, and other print media, use in broadcast media, publication via the Internet, and use in marketing materials. Such photographs and any accompanying descriptions shall not identify the Owner or the property address of the Project.
#26.9 Entire Agreemnt; Severability
This Agreement, together with the Proposal and all related exhibits, addendums, and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the Work, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement shall not be construed to create a contractual relationship of any kind between any persons or entities other than the Owner and the Contractor. If any provision of this Agreement and/or Proposal is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of this Agreement shall remain in full force and effect.
#26.10 Notices
Any notices to be provided under this Agreement shall be sent to the respective party in accordance with the notice information provided in the Proposal.
#26.11 Governing Law
This Agreement shall be governed by the law of the place where the Project is located, excluding that jurisdiction’s choice of law rules.
#26.12 Order of Precedence
In the event of a conflict or inconsistency between the Agreement, including the Proposal, or any other exhibits incorporated therein by reference, the terms and conditions of the Agreement shall govern.