AGREEMENT BETWEEN OWNER AND CONTRACTOR
ARTICLE 1
THE CONTRACT DOCUMENTS
1.1 The Contract Documents for this Agreement consist of (1) this Agreement; (2) Scope of Work set forth in Exhibit “A”; (3) any Exhibits attached to this Agreement; (4) Change Orders executed by the parties after execution of this Agreement; (5) written modifications to the Agreement issued after execution of this Agreement; and (6) other documents listed in Article 13 of this Agreement. These documents form the entire Agreement between the Owner and SIM, supersede all prior negotiations, representations or agreements, either written or oral, and are as fully a part of the Agreement as if attached to this Agreement. An enumeration of the Contract Documents, other than modifications issued subsequent to the execution of this Agreement, appears in Article 13. The Contract Documents shall be interpreted together. However, in the case of conflict between this Agreement and the other Contract Documents, this Agreement shall control.
ARTICLE 2 SCOPE OF WORK
2.1 SIM will complete the work described in the Contract Documents, and as specifically described in Exhibit “A” “Scope of Work” attached hereto and made a part of this Agreement (hereinafter called the “Roof Work”, “Window Work”, “HVAC Work”, “Solar Panel Work” and/or “Insulation Work”, collectively referred to herein as the “Work”). Unless otherwise stated in this Agreement, the Work does not include finish work, including, but not limited to, stucco work, primer and/or painting.
ARTICLE 3 OWNER’S RIGHTS AND RESPONSIBILITIES
3.1 The Owner shall be bound to SIM by the terms and conditions of this Agreement.
3.2 The Owner shall designate, in writing, one representative of Owner to whom SIM shall address any problems and/or concerns. This representative of the Owner shall be fully acquainted with the Project; shall furnish information and services required of the Owner so as to not delay the Work; and shall have express authority to act on behalf of and bind the Owner with respect to all matters requiring the Owner’s approval. If the Owner changes its representative or the representative’s authority, the Owner shall immediately notify SIM in writing.
3.3 The Owner is the owner of the real property on which the Project is situated. Upon receipt of written request from SIM, the Owner shall provide to SIM information necessary for SIM to evaluate, give notice of or enforce construction lien rights. If the Owner intends on selling the Property while the Contractor is furnishing the Work hereunder, the Owner shall notify the Contractor in writing at least thirty (30) days prior to such sale, providing the name and address of the purchaser.
3.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner in a timely manner so as to not delay the Project Schedule.
3.5 The Owner shall cooperate with SIM in scheduling SIM’s Work to avoid conflicts or interference in SIM’s Work. The Owner shall not interfere with the work of SIM, Subcontractors or with SIM’s relationships with Subcontractors. The Owner and/or Architect shall respond to SIM’s Requests for Information within 48 hours of their receipt of said Requests for Information.
3.6 Removal/Re-Installation of Roof and/or Window Obstructions. To the extent Roof Work is being furnished under this Agreement, Owner shall be responsible for removing and re-installing all gutters, satellite dishes, antennas, air conditioning units, solar panel systems (unless otherwise included in scope) and all electrical wiring/conduits and other components related to such systems (“roof obstructions”) and obtain necessary permits for the removal and/or reinstallation of such roof obstructions. Contractor shall not commence any roof work until the roof obstructions are properly removed from the roof. To the extent Window Work is being furnished under this Agreement, Owner shall be responsible for removing, disconnecting and/or re-installing any components relating to the alarm system that are connected to the windows or window openings, and obtain necessary permits for the removal and/or re-installation of the alarm system. Owner is responsible for relocating vehicles, patio furniture and any other furnishings and equipment away from the building perimeter prior to the commencement of the Work. Owner acknowledges that due to materials, chemicals and equipment necessary to furnish the Work under thisAgreement, it is possible that damage might occur to, but not limited to, driveways, patios, sidewalks and landscaping. Owner is responsible to protect interior and exterior furnishings and property from any dust and debris during Work. Although the upmost care will be exercised, Contractor shall not be liable for damage or loss to owner’s driveway, patios, sidewalks, landscaping and/or personal property, except to the extent Contractor failed to exercise reasonable care.
3.7 Prior to commencement of the Work and upon written request by the Contractor, the Owner shall furnish to the Contractor reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under this Agreement. The Contractor shall have no obligation to commence the Work until the Owner provides such evidence. If commencement of the Work is delayed under this Section 3.7,the Contract Time shall be extended appropriately.
ARTICLE 4 SIM’S RIGHTS AND RESPONSIBILITIES
4.1 SIM shall be bound to the Owner by the terms and conditions of this Agreement.
4.2 In performing the Work, SIM agrees to furnish its best skill and judgment, efficient business administration and supervision, and to perform the Work in a workmanlike manner consistent with the interests of Owner and the Project, as per this Agreement.
4.3 Warranty. SIM warrants to the Owner that the Work furnished under this Agreement will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and in accordance with the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized may be considered defective. In that regard, SIM warrants to Owner against any defects in labor with respect to the Work furnished under this Agreement for a period of one (1) year after Substantial Completion of the Work. SIM will promptly correct any Work found to be defective or nonconforming within the respective warranty period for such Work following Substantial Completion of the Work. SIM’s warranty excludes remedy for damage or defect caused by abuse, misuse, alterations or modifications to the Work not executed by SIM, improper or insufficient maintenance, improper operation, building settlement, acts of God, or normal wear and tear and normal usage, or from the negligence of the Owner. SIM agrees to secure the following manufacturer warranties on materials/products from the date of Substantial Completion of the Work to the extent such Work is furnished under this Agreement: a ten (10) year warranty from window manufacturer on window mullions and ten (10) year warranty on glass panels; a twenty five (25) year warranty from roof manufacturer; a five (5) year warranty from HVAC manufacturer; a twenty five (25) year warranty from the solar panel manufacturer and a ten (10) year warranty from the roof where the panels were installed; a five (5) year warranty from insulation manufacturer. Sample manufacturers’ warranties for the Work being furnished hereunder are attached hereto as Exhibit “B”.
4.4 Subcontracts. Portions of the Work may be subcontracted by the Contractor. If Owner rejects a Subcontractor that was properly qualified and reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the Subcontractor’s Work. The Contractor shall not be required to contract with anyone whom the Contractor has made reasonable objection.
4.5 Notwithstanding anything within this Agreement to the contrary, the Owner releases, indemnifies and holds the Contractor harmless from any liability, loss, costs or damages arising out of or related to pre-existing mold and/or mildew and/or water intrusion into the building from pre-existing water in the roof system and/or window system on the Project discovered by the Contactor up through and including the removal ofthe roof and/or window systems under this Agreement. The Contractor shall not be liable nor shall the Owner look to the Contractor to furnish any repairs to remediate pre-existing mold or mildew on the Property, or to repair damage to other property caused by such pre-existing mold or mildew and/or water intrusion into the buildings from pre-existing water in the roof system and/or window system discovered by the Contractor on the Project up through and including the removal of the roof and/or window systems under this Agreement. It is recognized that Contractor is not a mold and/or mildew specialist and is not required to investigate or ascertain whether pre-existing mold or mildew exists on the Property. 4.6 The Contractor shall not be liable for building movement, natural disasters or ponding water damages. Contractor shall not be liable for damage caused during or after its Work is completed by acts of God, unforeseen violent weather, including, but not limited to, hurricanes, tornadoes, sudden storms, floods, hail or sleet. The Contractor shall not be liable for hidden or concealed damage to, including, but not limited to, the roof deck/wood sheathing, truss system or structural integrity thereof, skylights, fascia, soffit and/or window openings.
ARTICLE 5 TIME OF COMMENCEMENT AND COMPLETION
5.1 SIM will apply for permits required by the governing authorities having jurisdiction over the Work within thirty (30) calendar days after execution of this Agreement by both Parties and receipt of necessary documents from the Owner, including a Notice of Commencement. SIM agrees to commence the Work within 30 calendar days after issuance of all permit(s) for said Work (“Commencement Date”). The Contractor shall be allowed access to the Project Monday through Friday, from 7:00 am to 5:00 pm., and Saturday from 8:00 am to 5:00 pm, if needed, to perform the Work, weather permitting.
5.2 The Work shall be substantially completed within 15 days from the Commencement Date, subject to any weather delays and adjustments in the Contract Time as provided in the Contract Documents. If the number of days is not provided above, then the Work shall be substantially completed within one (1) year from the Commencement Date.
5.3 In the event of any delay, disruption, interference, or suspension with the progress of the Work beyond the reasonable control of SIM resulting from: (i) conduct or lack of conduct by the Owner, Owner’s other Contractors, Condominium Association, the Building Department, or their representatives, officers, agents, or employees; (ii) changes ordered in the Work or in the sequence of the Work; (iii) labor disputes, tariffs, fire, unusual delay in transportation, unavoidable casualties, inclement weather, epidemic, pandemic; (iv) reasonably unforeseen, hidden or concealed conditions; (v) material shortages or delays in the delivery of materials; and/or (vi) any cause beyond the reasonable control of the Contractor, the Contract Time and Contract Sum shall be equitably adjusted by an agreed Change Order reflecting the extension of time and increase in Contract Sum.
5.4 Substantial Completion. SIM shall notify the Owner when it considers the Work has been Substantially Completed. At such time, the Owner and SIM shall conduct an inspection to determine whether the Work can be utilized for its intended purpose without excessive interference by SIM in completing the remaining Work. SIM shall prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, and which shall be submitted to the Owner for its written acceptance.
5.5 Punchlist. At the time of the inspection referenced in section 5.4, SIM and the Owner will determine whether any items of Work are required to be completed or repaired and need to be placed on a “punch list”. The Owner shall prepare and submit a punch list to SIM, and SIM will complete such items reasonably necessary to complete the Work in accordance with this Agreement. In no event shall the Owner add items to the punch list after it is submitted to SIM. In no event shall the existence of a punch list relieve the Owner of its obligation to make final payment to SIM. Final payment is specifically not conditioned on the completion of any such list.
5.6 Final Completion. Final completion for the Work shall mean the Work is accepted and/or passes final inspections by the AHJ and a Certificate of Completion or similar document is issued for the Work by the AHJ.
ARTICLE 6 CONTRACT SUM
6.1 The Owner shall pay SIM in current U.S. funds for SIM’s performance of the Work, the Contract Sum of $ 20,990.45, subject to additions and deductions by Change Orders as provided in the Contract Documents.
6.2 The Contract Sum includes all labor, materials, equipment, debris removal and/or services reasonably necessary for the proper execution and completion of the Work. The Contractor will be responsible for obtaining permits that may be required for the performance of the work from any governing authorities having jurisdiction over the Work.
6.3 Material Cost Escalation. Notwithstanding anything in this Agreement to the contrary, if the price of material(s) significantly increases, the Contractor will be entitled to the increased price, as defined below, pursuant to a Change Order. As used herein, a significant price increase shall mean any increase in price exceeding ten percent (10%) experienced by the Contractor from the date of the Parties’ execution of this Agreement. In such case, Contractor shall be entitled to the full increase in the cost of the materials under the Change Order. Any Change Order submitted under this section by the Contractor will be documented through purchase orders, invoices and/or statements. Contractor shall not be responsible for purchasing such materials until the Change Order is signed by the Owner. Where the delivery of material is delayed, through no fault of the Contractor, as a result of the shortage, unavailability of material, or delay in signing the Change Order, the Contractor shall not be liable for any additional costs or damages associated with such delay(s), and the Contract Time shall be equitably adjusted. Owner shall pay Contractor under this section pursuant to Article 8.
6.4 Finance contract additions: 6.4.1 The Contractor may introduce the Owner to third-party lenders for project fi nancing, but any agreements or negotiations are solely between the Owner and the lender 6.4.2 PACE fi nancing is presented as an option for energy-effi cient products and conservation projects, repaid through a property tax assessment 6.4.3 PACE fi nancing is provided directly through approved PACE lenders, with potential origination, lien recording, and administrative fees 6.4.4 The Contractor will be paid directly by the PACE lender after installation of items on the Material List. 6.4.5 In case of missing or damaged items at installation, the Owner agrees not to withhold payment through thirdparty funding. Instead, the Contractor will issue a check for 100% of the value of missing or damaged items, which the Owner will return upon delivery and installation of the missing items 6.4.6 The Owner agrees to sign a Contractors Completion Certifi cate and any other necessary documents required by the fi nancial institution providing the fi nancing It's important to note that PACE fi nancing attaches to the property as a tax assessment, not to the individual borrower. This can have implications for property sales and refi nancing. Potential PACE program participants should carefully consider the terms and long-term effects of this type of fi nancing before proceeding.
ARTICLE 7 PAYMENTS
7.1 Progress payments and final payment: Payments schedule WITHOUT financing: 30% - Before ordering 60% Material delivery and commencement 10% After passing final inspection.
7.2 Default on Payments If SIM does not receive a progress payment from the Owner through no fault of SIM, within seven days after the time for such payment is due, then SIM, upon giving seven days written notice to the Owner, and without prejudice to any other remedies, SIM may stop the Work until payment of the full amount owing to SIM has been received. The Contract Time shall be extended appropriately, and the Contract Sum shall be increased by the amount of the SIM’s reasonable costs of demobilization, delay, and remobilization, plus interest. If the Owner continues to fail to make said payment, after SIM giving the Owner an additional seven days written notice to cure such breach, at SIM’s sole discretion, and without prejudice to any other rights or remedies, SIM shall have the right to terminate the Agreement.
7.3 Financing Through Voluntary Assessment The payment schedule will align with the PACE financial company used to finance the project. If the Owner finances the work under this agreement using PACE Loans or similar programs, the Owner remains personally liable to pay SIM for the work provided under the agreement, regardless of nonpayment by the financing program for any reason whatsoever. 7.4 Interest on Unpaid Payments Payments due and unpaid under this Agreement shall bear interest from seven (7) days after the date payment is due at the rate of 1.5% per month (eighteen (18%) percent) per annum.
ARTICLE 8 CHANGES IN WORK
8.1 A Change Order may be requested by SIM or the Owner, without invalidating this Agreement, to make changes consisting of additions, deletions or other revisions within the general scope of the Work, the Contract Sum and Contract Time being adjusted accordingly. Changes in the general scope of the Work shall be accomplished by written change order prepared by SIM. Change Orders shall be based on an agreement between SIM and Owner as to the adjustment to the Contract Sum and Contract Time. SIM shall not commence any Change Order Work without a written Change Order executed by the Owner, and for which the deposit for the Change Order Work is received. Change Orders shall be paid within ten (10) days of Owner’s receipt and execution of same. SIM shall not be held responsible for any damages incurred by the Owner resulting from the Owner’s failure to timely execute a Change Order.
8.2 If a Change Order requires an adjustment in the Contract Sum, the adjustment shall be established by one of the following methods: 8.2.1 Mutual agreement on a lump sum with sufficient information to substantiate the amount; or 8.2.2 Unit prices already established in the Contract Documents or if not established by the Contract Documents then established by mutual agreement for the adjustment.
ARTICLE 9 INSURANCE
9.1 Prior to commencement of Work under this Agreement, SIM shall take out and maintain the following insurance with a company or companies authorized to do business in the State of Florida covering the Work undertaken by SIM: 9.1.1 Worker's Compensation insurance in accordance with Florida law. 9.1.2 Commercial General Liability insurance and Automobile Liability Insurance with a combined Bodily Injury and Property Damage limit of not less than $1,000,000.00 in aggregate and $1,000,000.00 per claim.
9.2 Builder’s Risk Insurance. The Owner shall be responsible for purchasing and maintaining the Owner’s usually liability insurance and property insurance. The Owner shall bear the sole risk of loss or damages for all materials and equipment delivered to the Project by Contractor and the Contractor is hereby relieved of any liability for any such loss and damages.
9.3 The Owner and SIM waive all rights against each other and their respective employees, agents, contractors, subcontractors, sub-subcontractors, for damages caused by fire or other causes of loss to the extent covered by property insurance required by this Agreement or other insurance applicable to the Project, except such rights as they may have to proceeds of such insurance, and such rights SIM may have for the failure of the Owner to obtain and maintain its usual liability and property insurance.
9.4 The Owner agrees to indemnify, defend, and hold SIM, and SIM’s officers, directors, agents, representatives and employees harmless from and against all claims, damages, losses, costs and expenses (including reasonable attorney’s fees and court costs at all trial and appellate levels) arising out of or in connection with the performance of the Work, provided such claim, damage, loss, cost or expense is attributable to theft, bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, including the loss of use resulting therefrom, for which SIM and SIM’s officers, directors, agents, and employees neither caused, nor are liable.
ARTICLE 10 DISPUTES
10.1 The parties recognize that problems and disputes between them may occur and that it is preferable for them to reach an amicable resolution of same without the need to resort to formal dispute resolution procedures. In that regard, mediation, with a mediator mutually agreed to by SIM and the Owner, shall be a condition precedent to the commencement of litigation, unless delay would irrevocably prejudice SIM or Owner, in which event litigation may be commenced. The mediation shall take place in Miami Dade County, Florida. In the event that such disputes are not resolved by mediation, or another ADR procedure as SIM and the Subcontractor may agree, then such disputes shall be resolved by a court of competent jurisdiction in the County where the Project is located.
10.2 In the event any litigation arises between the parties under this Agreement: (i) the parties shall and hereby submit to the jurisdiction of the courts of the State of Florida; and (ii) venue shall be laid in the County where the Project is located. This section shall survive termination of this Agreement.
10.3 The provisions of this Agreement may be enforced by all appropriate actions at law and in equity by the parties hereto, and their successors and assigns, with the prevailing party in any such action entitled to recover all costs and expenses incurred in such litigation, including but not limited to court costs, attorney’s fees and expert witness fees, arising before, during or after trial, including any costs, attorneys fees or expenses incurred in any appeal therefrom. This Agreement shall be governed by the laws of the State of Florida.
ARTICLE 11 TERMINATION
11.1 If the Owner refuses or fails in any respect to: (1) furnish reasonable evidence that sufficient funds are available for the entire cost of the Project upon Contractor’s request; (2) abide the laws, ordinances, rules, regulations or orders of a public authority having jurisdiction; and/or (3) stopped the Work for twenty (20) days through no fault of the Contractor; and/or (4) otherwise materially breach this Agreement, the Owner shall be deemed in default of this Agreement. If the Owner fails within seven (7) days after written notification to satisfactorily cure such default(s), at Contractor’s sole discretion, the Contractor without prejudice to any other rights or remedies, shall have the right to terminate the Agreement. The Contractor shall be entitled to terminate this Agreement if the Owners fails to make payment in accordance with section 7.3. Upon termination by the Contractor, the Contractor shall be entitled to recover from the Owner all its damages suffered and/or to be suffered caused by the Owner’s default(s), including, but not limited to, payment for all Work executed and for losses, costs or expense in connection with the Work, plus all demobilization costs and reasonable damages, plus overhead and loss profits under this Agreement.
ARTICLE 12 MISCELLANEOUS PROVISIONS
12.1 Claims for Concealed or Unknown Conditions. If SIM encounters concealed conditions which differ materially from those indicated in the Contract Documents, or unknown physical conditions, which differ materially from those ordinarily found to exist in construction activities, then SIM shall notify the Owner within twenty (20) days from first observing the conditions. The Contract Time and Contract Sum shall be equitably adjusted due to concealed or unknown conditions, by Change Order as provided in the Contract Documents. If the Owner and SIM cannot agree to the change on Contract Time and Contract Sum, then SIM shall make a claim in accordance with Article 10.
12.2 Claims for Consequential Damages. SIM and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes: 12.2.1 Damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons. 12.2.2 Damages incurred by SIM for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit other than loss of profits under this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 11. Nothing contained in this subsection shall be deemed to preclude additional general conditions incurred by SIM, if applicable in accordance with the requirements of the Contract Documents.
12.3 The parties hereto expressly agree that this Agreement was jointly drafted, and therefore, this Agreement shall not be construed against either party, but shall be construed in a neutral manner.
12.4 In the event any term or provision of this Agreement be determined by appropriate authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect.
12.5 In construing this Agreement, the captions and section headings shall be disregarded.
12.6 The failure of either party to insist, in any one or more instances, on the performance of the terms of the Agreement, shall not be construed as a waiver or relinquishment of such term with respect to further performance.
12.7 This Agreement represents the entire understanding and agreement between the Owner and SIM with respect to the subject matter hereof, and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by an authorized representative of both Owner and SIM. This Agreement shall be binding upon the parties hereto and their respective successors, and assigns.
ARTICLE 13 ENUMERATION OF CONTRACT DOCUMENTS
13.1 The Contract Documents, except for Change Orders and Modifications issued after execution of this Subcontract, are enumerated as follows: 13.1.1 This executed Agreement Between Owner and SIM; 13.1.2 The Exhibits consisting of Exhibit “A” (Scope of Work); Exhibit “B” (Sample Manufacturer Warranties); 13.1.3 Addendum to Standard Form of Agreement between Owner and Contractor; 13.1.4 Other Documents, if any, forming part of the Contract Documents are as follows: (List any additional documents).
ARTICLE 14 STATEMENTS AND NOTICES
CHAPTER 558 NOTICE OF CLAIM ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES.
FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND PAYMENT, UP TO A LIMITED AMOUNT, MAY BE AVAILABLE FROM THE FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A LICENSED CONTRACTOR. FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE NUMBER AND ADDRESS:
Contractor Lien Rights According to FLORIDA’S CONSTRUCTION LIEN LAW (SECTIONS 713.001-713.37, FLORIDA STATUTES),
1. Those who work on your property or provide materials and services and are not paid in full have a right to enforce their claim for payment against your property. This claim is known as a construction lien.
2. If your contractor or a subcontractor fails to pay subcontractors, sub-subcontractors, or material suppliers, those people who are owed money may look to your property for payment, even if you have already paid your contractor in full.
3. If you fail to pay your contractor, your contractor may also have a lien on your property. This means if a lien is filed, your property could be sold against your will to pay for labor, materials, or other services that your contractor or a subcontractor may have failed to pay.
4. To protect yourself, you should stipulate in this contract that before any payment is made, your contractor is required to provide you with a written release of lien from any person or company that has provided to you a "notice to owner."
5. Florida's construction lien law is complex, and it is recommended that you consult an attorney. The undersigned agree to abide by the terms of this agreement. By E-signing below, the owner acknowledges receipt of a complete copy of this agreement, material list, and exhibits. The E-signing of this document constitutes a legally binding agreement.