“Change Order” is a written order signed by Owner and Contractor after execution of the Contract indicating changes to the scope of Work, the schedule, or the Contract Price. This includes substitutions which are proposed by the Contractor and accepted by the Owner.
“Work” means the construction and services necessary to complete the scope described in the section titled WORK TO BE PERFORMED on the first page of the Contract and on Exhibit A to the Contract (if box on first page is checked).
Authorized Representative.The person signing this Contract shall be Owner’s designated and authorized representative. Such representative shall be present, be represented at the Jobsite, or be reachable by telephone, at all times when Work is in progress and shall be empowered to receive communications in accordance with this Contract on behalf of Owner. All communications given to the authorized representative by Contractor in accordance with this Contract shall be binding upon Owner. The person signing this Contract on behalf of Owner represents and warrants that he/she has the legal authority to do so.
Ownership of Jobsite. Owner represents and warrants that Owner is the legal owner of the Jobsite, or if Owner is not the legal owner, Owner represents and warrants that Owner has the legal authority to authorize the Work and bind the owner and agrees to indemnify Contractor and hold it harmless for its reliance thereon.
Relationship of the Parties. Contractor’s relationship to Owner is that of an independent contractor. The Contract Documents create a contractual relationship between Owner and the Contractor and shall not be construed as constituting a joint venture, partnership, or any other relationship between them, nor shall they be construed as creating any relationship whatsoever between Owner and Contractor’s employees or subcontractors or suppliers. Owner recognizes the relationship of trust and confidence established between it and Contractor. Owner agrees to deal with Contractor in a professional manner and to communicate, cooperate, and expeditiously reconcile any matter that may affect the proper execution and timely completion of the Work.
Work. All labor and materials will comply with the requirements of applicable statutes, codes, and ordinances governing the Work. Contractor is responsible for, and shall have sole control of the construction methods, sequences, and coordination of the Work, unless expressly stated to the contrary. Contractor is not responsible for the safety of persons on the property other than its subcontractors and employees. When present at the Jobsite, Owner agrees to abide by all of Contractor’s safety rules. If Owner is injured on the Jobsite because of his or her failure to abide by the Contractor’s safety rules or the terms of this Contract, Owner agrees that Contractor shall have no liability to Owner or any of his or her heirs, successors, or assigns.
Commencement of Work. Owner warrants that the structures on which Contractor is to work are in sound condition and capable of withstanding normal activities of roofing construction, equipment, and operations. Contractor’s commencement of the roof work indicates only that the surface of the deck appears satisfactory to Contractor for the attachment of roofing materials. Contractor is not responsible for the construction, undulations, or structural sufficiency of the roof deck or other trades’ work or design.
Construction Materials. All materials and work shall be furnished in accordance with normal industry tolerances for color, variation, thickness, size, weight, amount, finish, texture and performance standards. Excess materials delivered to job site and/or materials not physically attached to the structure after Substantial Completion of the work contemplated by this Contract shall remain the property of Contractor.
Material Cost Escalation. Steel products, asphalt, polyisocyanurate and other roofing products are sometimes subject to unusual price volatility due to conditions that are beyond the control and anticipation of Contractor. If there is more than a 10% increase in these or other roofing materials between the date of this Contract and the date when Work commences, Contractor will provide notice to Customer, and the Parties shall execute a Change Order pursuant to the section of this Contract entitled “Changes.”
Access to Work and Jobsite. The Owner, at Owner’s cost, shall facilitate access of the Contractor to the Jobsite. Water for construction and electric power will be furnished by Owner without cost to Contractor. Storage of materials and storage of Contractor’s equipment shall also be provided by Owner. Owner agrees to disconnect any plumbing, gas, electric, or other utilities required for Contractor to perform the Work. Owner will indemnify Contractor from personal injury and other claims and expenses if Owner fails to turn off power so as to avoid injury to Contractor’s personnel or resulting from the presence of concealed electrical conduit and live electrical power. Contractor is not responsible for costs of repair or damages, including disruption of service, resulting from damage to undisclosed or concealed electrical or other utility lines.
Protection of Personal Property. Owner agrees to remove or protect any personal property or fixtures inside and outside the Jobsite. Contractor shall make reasonable efforts to avoid damage to existing property, but Contractor shall not be held responsible for damage to Owner’s personal property or fixtures if such damage occurs due to Owner’s failure to remove or protect personal property or fixtures. Owner agrees that Contractor shall not be held liable for any minor damage to the Owner’s landscaping or building.
Protection of Personal Property. Except as otherwise specified, Contractor, at Owner’s expense, shall procure all permits, licenses, certifications and other applicable governing authority requirements and inspections. Owner shall, as necessary, provide Contractor with assistance in obtaining such permits.
Insurance. Contractor shall maintain commercial general liability and such other insurance as required by law. Contractor will furnish a Certificate of Insurance evidencing the types and amounts of its coverage, upon request. Before commencing the Work, Owner shall maintain a Builder’s Risk Policy upon the entire Jobsite for the full cost of replacement at the time of loss. This insurance shall name the Contractor as an additional insured. This insurance shall be written as a Builder’s Risk Policy or equivalent form to cover all risks of physical loss except those specifically excluded by the policy, and shall insurance (a) at least against the perils of fire, lightening, explosion, windstorm, hail, smoke, aircraft and vehicles, riot and civil commotion, theft, vandalism, malicious mischief, debris removal, flood, earthquake, earth movement, water damage, wind damage, testing if applicable, collapse however caused, and (b) damage resulting from defective design, workmanship, or material. The Owner shall be solely responsible for any deductible amounts or coinsurance penalties. The policy shall provide for a waiver of subrogation in favor of the Contractor. This insurance shall remain in effect until final payment has been made or until no person or entity other than Owner has an insurable interest in the property to be covered by this insurance, whichever is sooner. If the Owner does not intend to purchase such property insurance and with all of the coverages in the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work. The Contractor may then provide insurance that will protect the interests of the Contractor in the Work, and by appropriate Change Order the cost thereof shall be charged to the Owner. Additionally, Owner shall either self-insure or obtain and maintain its own liability insurance policy for protection against claims arising out of the performance of the Contract, including without limitation, loss of use and claims, losses, and expenses arising out of the Owner’s acts or omissions.
Environmental Hazards. Contractor is not responsible for any environmental hazards, including asbestos-containing materials, identified or released at Jobsite. Owner acknowledges that hazardous materials may be released by Contractor during the normal course of Contractor’s work. Such hazardous materials may include, without limitation, asbestos-containing materials mold, dust, chimney soot, creosote, and other particulate that may or may not become airborne. Owner expressly acknowledges ownership of any waste generated at the Jobsite, whether or not such waste contains hazardous materials. Except to the extent of the Contractor’s negligent or intentional acts or omissions, Owner shall be solely responsible for all risk, shall indemnify and hold Contractor harmless and free of liability, and shall bear the costs of any removal or correction of environmental materials at the Jobsite. Upon the discovery of hazardous materials on the Jobsite, Contractor shall immediate cease Work and notify Owner. Contractor shall not be required to recommence Work until the hazardous materials have been rendered harmless by Owner.
Noise, Fumes and Emissions. Owner is aware that roofing construction produces noise and roofing products emit fumes, vapors and odors during the application process. Some people are more sensitive to these noises and emissions than others. Owner shall hold Contractor harmless from claims from third parties relating to noise, fumes and odors that are emitted during the normal roofing process.
Jobsite Conditions. If the conditions encountered at the Jobsite are (a) conditions materially different from those indicated in the Contract Documents; or (b) unusual or unknown conditions materially different from those ordinarily encountered or generally recognized as inherent in the Work provided for in the Contract Documents, the Contractor shall stop Work in the affected area and give prompt notice of the condition to the Owner. The Contractor shall not be required to perform any Work relating to the unknown condition without the written mutual agreement of the Parties. Any change in the Contract Price or Contract Schedule shall be determined as outlined in the section herein titled Changes.
Payment. Owner shall timely make all payments required by this Contract and the attached Payment Schedule. Time is of the essence as to all terms of payment. Owner agrees that, in addition to other remedies available to Contractor, if payment is not timely made, Contractor shall be entitled to a service charge of 1.5% per month on all past due amounts, plus, if not contrary to any law, all costs of collection including actual attorneys’ fees. Unless requested by Customer, Contractor shall furnish lien waivers to Customer at the time final payment is made. In no event will the Contractor be required to submit an unconditional lien waiver prior to its receipt of payment from the Customer. No retention shall apply to any of the Work. Final Payment shall constitute acceptance and approval of all Work, and a waiver of all claims by Owner, except those arising from liens or the warranty included in this Contract. For any payments made by Owner via electronic transfer, wire transfer, or other kind of EFT transaction as may be required by Contractor, Owner agrees that it shall only accept such instructions and account information from Contractor in paper form and shall verbally verify the same with [insert appropriate position or person of Contractor] prior to Owner’s initial payment. Owner shall not make any payment to Contractor via electronic transfer, wire transfer, or other kind of EFT transaction pursuant to any other instructions without first verifying the instructions and account information via telephone with [insert appropriate position or person of Contractor].
Changes. Contractor may request or the Owner may order changes in the Work or the timing or sequencing of the Work that impacts the Contract Price or the Contract Schedule. All such changes shall be memorialized in a written Change Order to be signed by the Parties prior to Contractor’s commencement of any new work. For changes in the Work, Owner and Contractor shall negotiate an adjustment to the Contract Price or the Contract Schedule in good faith and conclude negotiations as expeditiously as possible. Contractor shall be entitled to add a markup to Change Orders of 10% for overhead, supervision, and profit. Where Contractor seeks input and information from Owner prior to issuing a Change Order, Owner shall use reasonable efforts to respond to Contractor’s request for information within two (2) business days. Acceptance of a Change Order by Owner shall not be unreasonably withheld.
Work Stoppage. Should work be stopped by any public authority or the Owner for more than thirty (30) calendar days, Contractor may terminate this Contract and collect for the value of all work completed and materials ordered as of the date work is stopped, plus Contractor’s anticipated profit under this Contract. Owner’s failure to sign Change Orders or Owner’s refusal to make Progress Payments, or any other cause beyond Contractor’s sole control, shall also be cause for work stoppage by Contractor.
Delay. Work shall be completed as expeditiously as possible, however, delays may occur due to work stoppage by a public authority, pandemics, adverse weather conditions, labor disputes, changes by Owner, work performed by Owner (or Owner’s separate contractors) or governmental authorities, unavailability or shortage of materials or supplies, unavoidable casualties, accidents, environmental hazards, Owner’s failure to make payments as required by this Contract, Owner’s failure to timely make selections, or any other cause beyond Contractor’s sole control. Any such delay shall extend the time of performance or, at Contractor’s option, terminate this Contract if the cause of the delay cannot be resolved within fourteen (14) calendar days. Where Contractor elects to extend performance, Contractor shall also be entitled to additional payment to reflect any increased cost of labor and/or materials.
Disputes. These Conditions shall be deemed to have been made in and governed by the laws of the state in which the Jobsite is located. Any legal suit or action with regard to these Conditions or the Work hereunder may, at Contractor’s option, be venued in the lowest civil court for the county in which the Jobsite is located. Contractor may also, at Contractor’s sole discretion, elect arbitration in place of civil litigation, without regard to whether litigation has been commenced by Owner. If Contractor elects arbitration, the arbitration shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of the Contract. The arbitration shall be conducted in the place where the Jobsite is located, unless another location is mutually agreed upon. A demand for arbitration shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the arbitration. The party filing a notice of demand for arbitration must assert in the demand all claims then known to that party on which arbitration is permitted to be demanded. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. No matter which method of dispute resolution is selected, Contractor shall be entitled to recover attorney’s fees and costs incurred in prosecuting, defending, or collecting from any dispute with Owner.
Warranty. Contractor warrants that all materials and equipment shall be new unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. The Contractor further warrants that the Work shall be free from material defects not intrinsic to the design or materials required in the Contract Documents. The Contractor’s warranty does not include remedies for defects or damages caused by normal wear and tear, use for a purpose for which the Work was not intended, improper or insufficient maintenance, modifications performed by the Owner, or abuse. Contractor shall assign and provide to Owner all manufacturers’ warranties which apply to products, equipment, systems, or materials incorporated into the Work. Any products, equipment, systems, or materials which are covered by a manufacturer’s warranty shall be covered exclusively by that warranty. Contractor’s warranty as set forth above shall commence on the date Contractor receives final payment and run for a period as described in the Scope of Work in Exhibit “A”. This warranty will not apply to the Work if Contractor does not receive Final Payment from Owner. The warranty period is not extended by Contractor’s correction of defective work. If Owner discovers any defect to which Contractor’s warranty applies, Owner shall notify Contractor in writing, identifying the defect and relevant Contract requirement which has been violated, within fourteen (14) days of Owner’s discovery of the defect. Contractor shall promptly correct the defect at its own time and cost and bear the expense of additional services required for correction of the defect. If Owner does not provide Contractor notice of a defect within fourteen (14) days of discovery or does not permit Contractor the opportunity to test or correct the defect as reasonably requested by the Contractor, Owner waives the Contractor’s obligation to correct the defect. Contractor’s warranty under this shall be Owner’s exclusive rights and remedy with respect to any claim for defect or deficiency in the Work or failure of the Work to conform to the requirements of the Contract Documents, including any resulting claim for breach of contract or warranty. EXCEPT FOR THE WARRANTY PROVIDED IN THIS SECTION, NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, USE, HABITABILITY, AND FITNESS FOR PARTICULAR PURPOSE OR ANY STATUTORY WARRANTIES SHALL APPLY TO THE WORK AND THE OWNER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
Indemnification. The Contractor shall indemnify and hold harmless the Owner from all claims for bodily injury and property damage other than to the Work itself that may arise from the performance of the Work, but only to the extent caused by the negligent acts or omissions of Contractor or Contractor’s subcontractors. The Contractor shall be entitled to reimbursement of any defense cost paid above Contractor’s percentage of liability for the underlying claim to the extent attributable to the negligent acts or omissions of the Owner. Owner shall defend, indemnify, and hold harmless the Contractor, and its subcontractors, from and against any and all claims, demands, causes of action, damages, liabilities, losses, and expenses arising from the project and/or the contract to the extent caused by the negligent or intentional acts of Owner or its invitees, consultants, design professionals, or agents.
Termination of Contract. In the event of termination of the Contract by the Owner, Contractor shall receive compensation from the Owner for all costs of labor and materials and all other expenses incurred through that date plus Contractor’s anticipated profit under the Contract. Contractor may unilaterally terminate this Contract at any time for any reason, including, without limitation, (a) Owner’s failure to timely pay in accordance with the Contract Documents; (b) Owner’s failure to timely make decisions relative to the Work, including Owner’s failure to timely approve Change Orders; or (c) Owner’s interference with Contractor’s ability to perform the Work. Following termination by Contractor, Owner shall remain obligated to pay Contractor for the value of all Work completed and materials ordered as of the date of termination, plus Contractor’s anticipated profit under the Contract.
Impairment of Credit. If the Owner is or becomes insolvent, or is unable to pay its debts as they mature, or files or has filed against it a bankruptcy, insolvency, or similar petition, or fails to pay any debt arising hereunder to Contractor on time, or if Contractor in good faith doubts the ability of the Owner to pay, Contractor may, at its option, either: (a) terminate the work at any time thereafter, and Owner shall thereupon pay for all work performed on a pro-rata basis plus all lost profit; or (b) discontinue work until such time as the Owner has paid Contractor in full for work performed, has agreed to pay Contractor for any additional costs incurred because of such discontinuance, and upon such other terms or conditions as may be imposed by Contractor to ensure the payment for the work.
Protection of Personal Property and Jobsite. Owner agrees to remove or protect any personal property inside and outside the Jobsite. Contractor shall make reasonable efforts to avoid damage to existing property. Contractor will make every effort to keep debris and dust down to a bare minimum. Contractor is not responsible for housecleaning or damages sustained to Owner’s personal property, including landscaping, during normal construction activities.
Publicity. Owner agrees to allow Contractor to display construction signs at the Jobsite, and to use Owner’s name or logos in advertisements, news releases, professional or trade papers or presentations, list of references, lead sheets or other types of publicity, and to otherwise disclose the existence or content of the Contract.
Contract Interpretation. The Contract Documents and subsequently issued Change Orders are essential parts of this Contract, and a requirement occurring in one is binding as though occurring in all. In resolving conflicts, discrepancies, or errors the following order of precedence shall be used: (a) the Contract (including modifications by Change Order), (b) these General Conditions, (c) the drawings, plans or specifications, and (d) the other documents comprising the Contract Documents.
Non-Waiver. Failure by Contractor to insist upon strict performance of any terms or conditions of this Contract or failure or delay in exercising any rights or remedies provided herein or by law shall not be deemed a waiver of any right of Contractor to insist upon strict performance hereof or any of its rights or remedies in the future.
Severability. The provisions of this Contract are severable. If any provision shall be determined to be illegal or unenforceable, such determination shall have no effect on any other provision hereof, and the remainder of the Contract shall continue in full force and effect so that the purpose and intent of this Contract shall still be met and satisfied.
Survival. All terms, conditions and provisions of this Contract, which by their nature are independent of the period of performance, shall survive the cancellation, termination, expiration, default or abandonment of this Contract.
