[Repair and Maintenance]
The following Terms and Conditions are incorporated into and made a part of the Proposal from Contractor and, once the Proposal is accepted by the Owner, the Agreement between the parties (collectively, the “Agreement”) to perform the work (“Work”) described therein. No hand-written terms or conditions made to or inserted in the Agreement by any person, including the person signing the Agreement (the “Owner”) or by the person signing the Agreement on behalf of the Owner, are or become a part of the Agreement unless approved and countersigned in writing by the Contractor. The Agreement and these Terms and Conditions represent the entire and integrated agreement between the parties hereto and supersede all prior negotiations, representations, advertisements, or agreements, either written or oral. The Agreement and these Terms and Conditions are the only documents describing the Work and establishing the rights and liabilities of the parties and no other document or understanding or course of dealing apply to the interpretation of the Agreement. The Agreement and these Terms and Conditions represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. The Agreement and these Terms and Conditions cannot be amended except by agreement in writing signed by the party against whom enforcement of the amendment is sought.
1. The Owner warrants that it is the owner of the property or is the owner’s duly authorized property manager; that it is authorized to enter into this Agreement; and that the Contractor is permitted to enter upon the property and to perform the Work.
2. Contractor warrants that the Work will be performed in a workmanlike manner. The Contractor further warrants to the Owner that all materials and equipment furnished under this Agreement will be new unless otherwise specified and that all Work will be of good quality, free from faults and defects and in conformance with the Agreement for a period of six months from date of substantial completion. All Work not so conforming to these standards may be considered defective. The Contractor’s warranty excludes defects caused by abuse, alterations, or failure to properly maintain the Work. Nothing in this warranty is intended to limit any manufacturer’s warranty which provides Owner with greater warranty rights than set forth in this section. Contractor makes no other warranty, express or implied, other than those specifically set forth herein. If, within six months after the date of substantial completion or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by and specifically included in the Agreement, any of the Work is found to be defective and not in accordance with the Agreement, the Contractor shall correct it promptly after receipt of a written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition.
3. Contractor reserves the right to use materials of equal or similar quality to those specified. Any changes from the plans or specifications which may be required by any public office or official shall constitute an additional cost to the Owner and shall be paid to Contractor by the Owner. If Contractor discovers a hidden or unknown defect or condition that increases the cost of completing the Work, the price shall be equitably adjusted to reimburse Contractor for any and all additional costs to complete the Work caused by the hidden or unknown defect or condition. Any other change from the description of the Work will be performed only upon written change order signed by Owner and Contractor.
4. If Owner delays the Contractor’s performance, the price shall be equitably increased by an amount sufficient to reimburse the Contractor for any additional costs and expenses incurred or resulting therefrom. Owner agrees that responsibility for the control of the working forces, including subcontractors and suppliers, rests exclusively with Contractor, and Owner agrees not to interfere with Contractor’s control of the working forces.
5. If Contractor is delayed or prevented from performing any Work as the direct or indirect result of labor troubles, inability to procure materials, governmental or permit processing delays, restrictive laws or regulations, domestic unrest, Owner’s act or omission, acts of God, or any other reason beyond Contractor’s reasonable control, then performance of the Work shall be extended for a period equivalent to the period caused by such event, or at the election of Contractor, if the delay is for a period longer than 20 days, Contractor may cancel this Agreement and receive from Owner the reasonable costs of labor and materials furnished before cancellation.
6. Unless otherwise provided herein, Owner agrees to pay Contractor on a monthly basis for work performed and materials delivered within 10 days following the receipt of Contractor’s invoice. Owner shall pay the final balance upon issuance by Contractor to Owner of a Certificate of Completion. If Owner fails to pay Contractor within 10 days after the invoice or, in the case of final payment, within 10 days following the issuance of the Certificate of Completion, Contractor shall be entitled to charge an additional 1.5% monthly interest on the outstanding amount due, compounded monthly, which shall reimburse Contractor for the additional administrative expenses thereby incurred. In addition to any and all other amounts due and payable hereunder, and in the event Contractor employs legal counsel to collect any such amounts outstanding, Contractor shall be entitled to reimbursement from Owner for any and all reasonable costs of collection, including reasonable court costs and attorney fees.
7. Owner releases Contractor and waives any and all claims for incidental, consequential, economic, exemplary, indirect and punitive damages and lost profits arising from any cause whatsoever.
8. This Agreement shall be governed by the laws of the state in which the property and project is located (without regard to principles of conflict of laws), for all purposes. Any action brought by any party with respect to the Work, or to enforce the terms of this Agreement, shall be brought exclusively in the courts of the state situated in the same county as the property and project. Each party irrevocably consents to this forum selection and submits to the subject matter and personal jurisdiction of said courts. Contractor shall be entitled to recover from the Owner Contractor’s costs and attorney’s fees associated with any litigation or any effort to collect payments due Contractor under this Agreement.
9. In any emergency affecting the safety of persons or property, the Contractor shall act, at its discretion, to prevent threatened damage, injury or loss. Any reasonable costs so incurred by Contractor shall be paid by Owner.
10. To the fullest extent permitted by law, Owner will indemnify, defend, save and hold harmless Contractor, its officers, agents, representatives and employees, from any and all costs, expenses, attorney’s fees, claims, suits, causes of action, damages, losses or liability for injuries to property, injuries to any person arising out of, related to, or caused by the intentional or negligent act or omission by Owner, Owner’s employee or any agent of Owner. Owner agrees, upon receipt of notification by Contractor, to promptly assume full responsibility for the defense of any and all suits, actions or proceedings which may be brought against Contractor.
11. If any provision of this Agreement or its application is invalid or unenforceable to any extent or in any circumstance, the remainder of this Agreement or the application of such provision in other circumstances will not be affected, and each provision of this Agreement will be valid and enforceable to the fullest extent permitted by law.
Special Notes and Exclusions:
a. Water intrusion due to leaks within a roofing system can lead to the proliferation of mold on exterior and interior surfaces. In performing roof maintenance or repair services under this proposal, it is understood and agreed that Contractor and its insurance carrier are “HELD HARMLESS” by Owner and released from any and all liability in connection with or, directly or indirectly, arising out of any pre-existing or future mold problems and Owner waives any direct, incidental or consequential damages, including damage to the building structure, contents or health problems, attributable to past, present or future water intrusion and associated mold, fungus, mildew, or algae growth. The Owner also WAIVES ALL SUBROGATION RIGHTS against Contractor and its subcontractors from damages as a result of such issues.
b. The metal supply market has become tremendously unstable and as a result Contractor is not able to obtain any form of price protection and cannot be held responsible for price increases beyond Contractor’s control. Contractor can only offer pricing based on today’s metal pricing. Further price escalations beyond Contractor’s control will be confirmed and passed on at the time of performance of the Work.
c. Contractor will maintain a clean and safe work environment and will clean up and haul away all construction debris at the completion of the Work.
d. Unless otherwise provided in the Agreement, Contractor will provide all permits and call for all inspections that are needed to comply with the building codes.
e. The Owner will provide a suitable and secure work and staging area to facilitate maximum production to the project and efficiency in the progress of the Work.
f. The Owner shall carry and maintain broad form all risk insurance, builder’s risk insurance and other necessary insurance including general liability insurance. Contractor’s workers shall be fully covered by workman’s compensation. Each party to this Agreement waives any and all rights of subrogation against the other.
g. Contractor shall not be liable for and Owner hereby waives any claims it may have against Contractor for damage caused to any property of Owner located within six inches under the roof deck, including but not limited to cables, vents, fiber optic lines, steam lines, gas lines, conduits, electric, plumbing and HVAC. Owner shall fully inform and disclose to Contractor the existence of any such property, cables, lines or equipment prior to the start of the Work.
h. Contractor is not required to replace or repair any existing roof penetrations unless specifically included as part of the scope of Work in the Proposal.
i. Contractor is not liable for repairing roof penetrations caused by someone other than Contractor. In the event work performed by Contractor is damaged in any manner by Owner or third parties, then Owner shall reimburse Contractor on a time and material basis for repairs to Contractor’s Work which result from the acts or omissions of Owner or third parties.
j. Unless otherwise expressly provided in this Agreement to be part of the Work, the Contractor is not responsible for any Hazardous Conditions encountered at the site. Upon encountering any Hazardous Conditions, the Contractor will stop Work immediately in the affected area and notify the Owner and, if legally required, all government or quasi-government entities with jurisdiction over the Project or site. The Contractor shall be obligated to resume Work at the affected area of the Project only after the Owner’s qualified expert provides Contractor with written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or site. The Contractor will be entitled to an adjustment in the amount due from Owner under this Agreement and amount of time permitted to complete the Work to the extent the Contractor’s cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. To the fullest extent permitted by law, the Owner shall indemnify, defend and hold harmless the Contractor and its officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at the site.
k. Concealed or latent physical conditions or subsurface conditions at the site that (i) differ from the conditions indicated in the Agreement, or (ii) are of an unusual nature, differing from the conditions ordinarily encountered and generally recognized as inherent in the Work are collectively referred to herein as “Differing Site Conditions.” If the Contractor encounters a Differing Site Condition, the Contractor will be entitled to an adjustment in the amount due from Owner under this Agreement and amount of time permitted to complete the Work to the extent the Contractor’s cost and/or time of performance have been adversely impacted by the presence of a Differing Site Condition.[End of Terms and Conditions]