Contract, Plans, Specifications, Permits and Fees. The work described in this Contract shall be done according to the plans and the plan specifications (if any), except in the case of conflict, the provisions of this Contract shall have control over both the plans and the plan specifications. All required building permits will be paid for by Owner and obtained by Contractor at cost plus Contractor’s standard markup for the locale in which the permits are obtained. All other charges, taxes, assessments, fees etc., of any kind whatsoever, required by any government body, utility company or the like shall be paid for by Owner.
Non-Binding Estimates. Any opinion or quote of probable construction cost (Estimates) provided by the Contractor to the Owner or Owner’s representative, including insurance adjuster, are made based on information available to the Contractor at the time and based on Contractor’s experience and qualifications. Contractor does not have control over the cost of labor, materials, equipment, services furnished by others, or over the means and methods by which third parties determine prices. Contractor does not guarantee the Estimates, and the actual cost may vary. This section does not apply if a quote or estimate is specifically incorporated into this Contract but only if marked as a “Not to Exceed” amount.
Payment; Insurance Proceeds. Owner will pay Contractor promptly according to the agreed upon draw schedule or Contractor’s normal invoicing procedures, as applicable. Regardless of whether this Contract relates to a loss covered by Owner’s insurance carrier, Owner is responsible for all Contractor fees and payment of invoices. Owner has irrevocably assigned its rights to insurance proceeds to Contractor; therefore, any insurance proceeds received by Owner directly from an insurance company related to work covered by this Contract must be immediately endorsed payable to Contractor and delivered to Contractor’s authorized representative.
Property Lines. Owner is responsible to locate and inform Contractor of the location of all property lines. At the discretion and direction of Contractor, Owner may be required to provide at Owner’s expense, a licensed surveyor’s map of the property showing property lines.
Installation. Owner understands that Contractor may or may not install the materials. Contractor has the right to subcontract any part of, or all of, the work herein.
Change Orders. Should Owner, construction lender, or any government body or inspector require any modification to the work covered under this Contract, any cost incurred by Contractor shall be added to the Contract price as extra work and Owner agrees to pay Contractor his normal selling price for such extra work. All extra work as well as any other modifications to the original Contract shall be specified and approved by both parties in a written change order. All change orders shall become a part of this Contract and shall be incorporated herein.
Equitable Adjustments. If, during construction, the price of lumber, other building material, or the cost to rent any necessary equipment increases, through no fault of the Contractor, the purchase price shall be equitably adjusted at Contractor’s standard markup, by the amount of the increase (Equitable Adjustment).
Contractor will document any price increases through purchase orders, quotes, invoices, receipts, or similar written documentation from the material or equipment seller.
In the event of an Equitable Adjustment under this section, Contractor shall provide Owner a change order documenting the increase. Owner shall not delay in signing the change order. At Contractor’s option, the amount of the Equitable Adjustment will be paid by the Owner in advance or on the date of the next draw.
If Owner fails to sign the change order or fails to make timely payment, such acts shall constitute a material breach of this Contract.
Owner’s Responsibility: Insurance etc. Owner is responsible for the following: (1) to see that all necessary water, electrical power (including temporary poles as needed), access to premises, and toilet facilities (including portable toilets as needed) are provided on the premises. (2) to provide a storage area (including temporary storage units as needed) on the premises for equipment and materials. (3) to relocate and protect any item that prevents Contractor from having free access to the work areas such as but not limited to furniture, appliances, draperies, clothing and other personal effects, TV or radio antennas, vehicles, tools or garden equipment. In the event that Owner fails to relocate such items, Contractor may relocate these items as required but in no way is Contractor responsible for damage to these items during their relocation and during the performance of the work. (4) to obtain permission from the owner(s) of adjacent property(ies) that Contractor must use to gain access to the work areas. Owner agrees to be responsible and to hold Contractor harmless and accept any risks resulting from the use of adjacent property(ies) by Contractor, except for any damages caused by Contractor’s gross negligence or intentional misconduct. (5) to correct any existing defects which are recognized during the course of the work. Contractor shall have no liability for correcting any existing defects such as, but not limited to, dry rot, structural defects, or code violations. (6) to maintain property insurance with Fire, Course of Construction, all Physical Loss with Vandalism and Malicious Mischief clauses attached, in a sum at least equal to the Contract price, prior to and during performance of this Contract. If the project is destroyed or damaged by an accident, disaster or calamity, or by theft or vandalism, any work or materials supplied by Contractor in reconstructing or restoring the project shall be paid for by Owner as extra work.
Delay. Contractor shall not be held responsible for any damage occasioned by delays resulting from: work done by Owner’s subcontractors, extra work, acts of owner or owner’s agent including failure of owner to make timely progress payments or payments for extra work, shortages of material and/or labor, bad weather, fire, strike, war, governmental regulations, pandemics, or any other contingencies unforeseen by Contractor or beyond Contractor’s reasonable control.
Surplus Materials and Salvage. Any surplus materials left over after this Contract has been completed are the property of Contractor and will be removed by same. No credit is due Owner on returns for any surplus materials because this Contract is based upon a complete job. All salvage resulting from work under this Contract is the property of Contractor.
Cleanup & Advertising. Upon completion, and after removing all debris and surplus materials, wherever possible, Contractor will leave premises in a neat, broom clean condition. Subject to Owner’s prior consent, Contractor may display signs and advertise at the job site for the period of time starting at the date of signing of this Contract and continuing uninterrupted until fourteen (14) days past the date the job is completed and payment in full has been made. Subject to Owner’s prior consent, Contractor may publish the project street address on a “references” list and to take and use “before” and “after” photos which may be given to prospective customers.
Unanticipated Conditions & Concealed damage. Expense incurred because of unusual or unanticipated conditions shall be paid for by owner as extra work (conditions such as, but not limited to, ground conditions that require fill, or unusually hard soil, rocky soil, or the presence of ground water). Contractor will inform Owner of any dry rot or other deterioration or unanticipated condition which is concealed and is discovered during the course of the work. Contractor is not responsible to repair any such discovered deterioration or condition and any work done by Contractor to remedy such will only be done as extra work in a written change order.
Hazardous Substances. Owner understands that Contractor is not qualified as a Hazardous Material Handler or Inspector or as a Hazardous Material Abatement contractor. Should any hazardous substances as defined by the appropriate government authority with jurisdiction be found to be present on the premises, it is the Owners’ responsibility to arrange and pay for abatement of these substances.
Right to Stop Work and to Withhold Payment on Labor and Materials. If any payment is not made to Contractor as per this Contract, Contractor shall have the right to stop work and keep the job idle until all past due progress payments are received. Contractor is further excused by Owner from paying any material, equipment and/or labor suppliers or any subcontractors (hereinafter collectively called “suppliers”), during the period that Owner is in arrears in making payments to Contractor for bills received during that same period. If these same “suppliers” make demand upon Owner for payment, Owner may make such payment on behalf of Contractor and Contractor shall reimburse Owner for this amount at such time that Owner becomes current with Contractor for all past due payments. Owner is responsible to verify the true amounts owed by Contractor to these same “suppliers”, prior to making payment on behalf of Contractor. Owner shall not be entitled, under any circumstances, to collect as reimbursement from Contractor any amount greater than that exact amount actually and truly owed by Contractor to these same “suppliers”, for work done or materials supplied on Owner’s job.
Collection & Legal Fees. Owner agrees to pay all collection fees and charges that result should Owner default in payment of this Contract. Overdue accounts are subject to interest charged at the rate of 18% per annum or at the highest rate allowed by law. In the event litigation or arbitration arises out of this Contract, the prevailing party(ies) shall be entitled to recover all legal, arbitration, and attorney fees. The court or arbitrator shall not be bound to award fees based on any set fee schedule but shall, if it so chooses, award the true amount of all costs, expenses and attorney fees paid or incurred.
Mutual Non-Disparagement. Contractor and Owner agree that they will not publicly or privately disparage each other, their agents or representatives, in any way, verbally, in writing or otherwise, or publish disparagements with any Internet or like content provider related to this project or to any party.
Arbitration of Disputes. Any controversy or claim arising out of or relating to this Contract, or the breach thereof, shall be collectively referred to as “Claims.” Owner shall bring all Claims pursuant to binding arbitration in accordance with the applicable Construction Industry Arbitration Rules of the American Arbitration Association which are in effect at the time the demand for arbitration is filed. A judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any arbitration award shall be subject to correction and/or vacation for the reasons stated in the law. The arbitrator shall award reasonable attorney’s fees and expenses to the prevailing party. After being given due notice, should any party fail to appear at or participate in the arbitration proceedings, the arbitrator shall issue a default award on motion of the moving party. Notwithstanding Contractor’s right to arbitrate, Contractor does not waive or release any of its lien rights or rights to create, attach, perfect, or foreclose on same. Venue for arbitration hearings shall be the project county unless otherwise agreed to by the parties. Regardless of the other provisions of this section, the Contractor may bring Claims against the Owner in arbitration, as herein provided, or in any court of competent jurisdiction; provided that if Contractor brings one or more Claims in court, then Owner must bring counterclaims arising out of or related to the same transaction or occurrence as part of the same action.
Occupational Code Complaints. The arbitration procedure above, at Contractor’s option, may be utilized for one or more complaints described under section 2411 of the Michigan Occupational Code, PA 299 of 1980, being MCL 339.2411. If Contractor elects arbitration for such complaints, Contractor shall provide notice of the initiation of the procedure by certified mail not less than 30 days before the commencement of that procedure. The location of the proceedings shall be mutually agreed to by the parties.
Services and Materials Under Certain Conditions. CONTRACTOR SHALL NOT BE RESPONSIBLE FOR FAILURE TO PROVIDE SERVICES OR MATERIALS HEREUNDER: (i) AT LOCATIONS DEEMED HAZARDOUS TO THE HEALTH OR SAFETY OF CONTRACTOR’S EMPLOYEES OR REPRESENTATIVES OR (ii) WHERE SUCH FAILURE RESULTS FROM CAUSES BEYOND THE REASONABLE CONTROL OF CONTRACTOR, INCLUDING BUT NOT LIMITED TO ACTION OR INACTION OF THE OWNER OR CUSTOMER, ACTS OF GOD, ACTS OF GOVERNMENT, PANDEMICS, STRIKES OR LABOR DISPUTES (OTHER THAN BY CONTRACTOR’S OWN EMPLOYEES), FAILURE OF TRANSPORTATION, FIRE, FLOOD OR OTHER CASUALTY, AND FAILURE OF SUBCONTRACTORS OR SUPPLIERS.
Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS CONTRACT TO THE CONTRARY, NO RECOVERY OF ANY KIND AGAINST CONTRACTOR OR ITS EMPLOYEES, REPRESENTATIVES, AFFILIATES, OR AGENTS ARISING OUT OF OR RELATED TO THIS CONTRACT OR THE SERVICES HEREUNDER SHALL BE GREATER IN AMOUNT THAN THE AMOUNT OF INSURANCE PROCEEDS RECEIVED BY THE CONTRACTOR UNDER CONTRACTOR’S INSURANCE POLICY(IES). IF COVERAGE UNDER CONTRACTOR’S INSURANCE POLICY(IES) IS UNAVAILABLE, DENIED, IF PROCEEDS ARE OTHERWISE UNAVAILABLE FOR ANY REASON, OR IF CONTRACTOR DOES NOT HAVE COVERAGE FOR THE LIABILITY AT ISSUE, THEN CUMULATIVE LIABILITY IS LIMITED TO THE COST OF SERVICES RENDERED AND MATERIAL PROVIDED. CONTRACTOR OR ITS EMPLOYEES, REPRESENTATIVES, AFFILIATES, OR AGENTS SHALL HAVE NO LIABILITY FOR DAMAGES ARISING FROM MANUFACTURING, DESIGN OR INSTALLATION DEFECTS BY PERSONS OTHER THAN CONTRACTOR’S EMPLOYEES OR REPRESENTATIVES. CONTRACTOR SHALL MAINTAIN COMMERCIALLY REASONABLE TYPES, COVERAGES, AND AMOUNTS OF INSURANCE.
Indemnification. Owner will indemnify, defend, and hold harmless Contractor from and against any damages, costs, and expenses of any nature (including attorney fees and costs) incurred by or asserted against Contractor arising from any claim for personal injury, death or property damage (collectively “Losses”) so long as such Losses are not caused by the gross negligence or willful misconduct of Contractor, its agents or subcontractors.
Assignment. Owner shall not assign this Contract without the prior written consent of Contractor.
Limited Warranty; Exclusions. Contractor warrants to Owner that the work performed by Contractor will be performed in a workmanlike manner and free from substantial defects for a period of one (1) year following completion of the work, unless otherwise specified or agreed by Contractor in writing. If a covered defect occurs within such one (1) year period, Owner shall give prompt written notice thereof to Contractor, and Contractor shall repair or replace such defect, at Contractor’s discretion and at no cost to Owner. No repairs, replacements or other actions by Contractor shall extend the term or broaden the scope of this limited warranty. The foregoing limited warranty is in lieu of all warranties of habitability or workmanlike construction, or any other warranties, express or implied, to which owner might be entitled, and Contractor’s obligation to repair or replace any defective work shall be Owner’s sole remedy for any breach of this limited warranty. This limited warranty excludes, and shall not cover, repairs or replacements arising from or related to: (i) damage caused by a weather or other event unrelated to Contractor’s work, such as wind, hail, ice dams, lightning and the like; (ii) rolled roofing installations; (iii) repairs made by Contractor over multiple layers; (iv) color/product matching and aesthetic issues; (v) emergency mitigation and textile cleaning / restoration services; (iv) subsequent alterations in Contractor’s work by others, including but not limited to cutting, patching and maintenance of the roof, siding or gutters; (vii) Owner’s failure to maintain the property; (viii) subsequent Owner allowed or caused penetrations of the roof or siding; (ix) matters not caused by the work of Contractor, including without limitation any preexisting conditions not a part of Contractor’s work; or (x) defects in materials. This limited warranty is void if Owner makes or authorizes any repairs without the written consent of Contractor. This limited warranty is also void if Owner did not pay the full amount originally due Contractor for the work prior to making any warranty claim. This limited warranty is only provided to the Owner and is not assignable or transferrable by the Owner to any other party.
Contractor Rights and Remedies; Construction Lien. Contractor reserves all rights and remedies available under this Contract, at law or in equity, including without limitation its construction lien rights. Owner grants to Contractor an equitable lien to secure Owner’s payment obligations to the extent a construction lien is not applicable or enforceable for any reason. Upon material breach by the Owner, Contractor may terminate this Contract in addition to exercising any other rights and remedies available at law or in equity, and all remedies are cumulative. If the work is being performed on a residential structure, as defined in MCL 570.1106(4), the following is deemed a part of this Contract:
That a residential builder or a residential maintenance and alteration contractor is required to be licensed under article 24 of the occupational code, 1980 PA 299, MCL 339.2401 to 339.2412. That an electrician is required to be licensed under article 7 of the skilled trades regulation act, MCL 339.5701 to 339.5739. That a plumbing contractor is required to be licensed under article 11 of the skilled trades regulation act, MCL 339.6101 to 339.6133. That a mechanical contractor is required to be licensed under article 8 of the skilled trades regulation act, MCL 339.5801 to 339.5819. If the contractor is required to be licensed to provide the contracted improvement, that the contractor is licensed and the contractor’s license number. Contractor is a licensed residential builder, and its license number is 2102204950.
Binding Effect. Owner has full power and authority to enter into this Contract on behalf of him/herself and any co-owners, joint owners, and others with interest in the property. This Contract shall be binding on the foregoing parties and their heirs, representatives, successors, and permitted assigns.
WAIVER OF JURY TRIAL. PARTIES ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION CONCERNING ANY AND ALL CLAIMS. THIS PROVISIONS SHALL NOT BE INTERPRETED OR CONSTRUED AS WAIVING BINDING ARBITRATION FOR OWNER’S CLAIMS.
Miscellaneous. This Contract shall be governed by and construed in accordance with the internal laws of the State of Michigan (without giving effect to any choice or conflict of law provision or rule). Jurisdiction and venue shall be appropriate in the 16th District Court of Livonia, Michigan, the Circuit Court of Wayne County, Michigan, or the United States District Court for the Eastern District of Michigan, Southern Division. If any term or provision of this Contract is deemed invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure by Contractor to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract shall operate or be construed as a waiver thereof; nor shall any single or partial exercise by Contractor of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. A signed copy of this Contract delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy.
