TERMS AND CONDITIONS
- Pricing Escalation and Availability. The construction industry is currently experiencing price and availability volatility with regard to the materials used for this project. Because of market fluctuations, the prices of these materials are subject to sudden and significant changes and firm prices cannot be obtained from suppliers. Therefore, if there is an increase in the actual cost of the products charged to Chase Roofing and Contracting Inc. (“Contractor”) in excess of five (5%) percent subsequent to making this Agreement, the price set forth in this Agreement shall be increased without the need for a written change order or amendment to the Agreement to reflect the price increase and additional direct cost to the Contractor. Contractor will submit written documentation of the increased charges to the Customer upon request. As an additional remedy, if the actual cost of any material line item increases more than ten (10%) percent subsequent to the making of this Agreement, Contractor, at its sole discretion, may terminate the Agreement for convenience.
- Nature of work. Chase Roofing and Contracting Inc.(“Contractor”), by and through its subsidiaries and affiliates, shall furnish the labor and material necessary to perform the work described herein or in the referenced contract documents. Contractor does not provide engineering, consulting, or architectural services. It is the Owner’s responsibility to retain a licensed architect or engineer to determine proper design and code compliance. Contractor assumes no responsibility for structural integrity, quality of construction, undulations compliance with building codes, or design. If plans, specifications, or other design documents have been furnished to the Contractor, the customer warrants that they are sufficient and conform to all applicable laws and building codes. Contractor is not responsible for any loss, damage, or expense due to defects in plans or specifications or building code violations. Customer warrants all structures to be in sound condition capable of withstanding normal activities of roofing construction equipment and operations. Contractor is not responsible for location of roof drains, adequacy of drainage, or ponding on the roof.
- Material Substitution. Owner acknowledges that in the course of construction, certain changes, deviations or omissions in the design of the project may occur or may result because of the particular conditions of the job, lender requirements, and/or governmental authorities having jurisdiction over the project. In the event that Federal, state, local, county, or municipal codes, regulations or permitting authorities require work not expressly set forth in this Agreement or that differs materially from that generally recognized as inherent in work provided for in this Agreement, Owner shall pay for all extra costs incurred by Contractor as a result of the required additional work in addition to the Agreement price. In the event that materials to be used in the construction of the project become unavailable, Contractor reserves the right to substitute substantially equivalent materials for the unavailable materials. Based upon the foregoing, the Owner hereby authorizes the Contractor to undertake, without the need for specific authorization, any changes, deviations or omissions required by the particular conditions of the job, lender’s requirements, or governmental authorities, and to make changes and substitutions of materials of equal or greater quality than those specified on the plans and specifications. Owner agrees to pay for all changes, deviations or omissions required for the project. Owner further certifies that it has not relied upon the accuracy of the representations of the Contractor with respect to the plans and specifications.
- This proposal is based on mutually agreed upon schedule. If the intended schedule changes, the customer agrees to notify the Contractor in writing at least three (3) weeks prior to the anticipated commencement of work.
- Asbestos and Toxic Materials. Both parties agree that dealing with hazardous materials, waste or asbestos requires specialized training, processes, precautions and licenses. Therefore, unless the scope of this agreement includes the specific handling, disturbance, removal or transportation of hazardous materials, waste or asbestos, upon discovery of such hazardous materials the Contractor shall notify Customer immediately and allow Customer/Contractor to contract with a properly licensed and qualified hazardous material contractor. Any such work shall be treated as a change order resulting in additional costs and time considerations.
- Unless stated otherwise on the face of this proposal, Upon acceptance of proposal, mobilization by the Contractor, and delivery of materials, the Contractor will invoice the Customer for such work. Customer shall pay invoice within ten (10) days from the receipt of invoice. The remaining portion of contract price plus any additional charges for changed or extra work will be invoiced based on progress and will be billed at the contractor’s discretion. All invoices are net ten (10) days from the receipt of the invoice. Payments not timely made shall accrue interest on a daily basis at the rate of 1.5% per month, not to exceed the maximum amount of interest allowed by law. Payments received shall be applied first to interest on all outstanding invoices and then to the principal amount of the oldest outstanding invoices. Contractor will not perform service, warranty and/or punch list work if Owner fails to timely pay Contractor, and Contractor may cease all work or terminate the Agreement if Owner fails to adhere to the payment schedule. If after the work under and pursuant to this Agreement has been substantially completed, full completion of such work is delayed, including, but not limited to, delay in completion of final inspection or the issuance of a certificate of occupancy, through no fault of Contractor, Owner agrees to make payment of the balance due for work completed in accordance with the payment terms of this Agreement or as outlined on the proposal. All warranties, lien releases, and/or wind mitigation will be provided within 30 days after final payment is received.
- SEALED ATTIC LIABILITY EXCLUSION. Contractor disclaims liability for any issue, claim, or damage including, without limitation, attorney’s fees, costs, and expenses arising out of or relating to combining a sealed attic system with spray foam insulation and/or a self-adhered underlayment, and Owner agrees to indemnify, defend and hold harmless Contractor for any and all damages arising out of said condition(s).
- Contractor shall carry workers’ compensation, automobile liability, commercial general liability, and such other insurance as required by law. Contractor will furnish Certificates of Insurance, evidencing the types and amounts of its coverage, upon request. Owner may secure additional insurance to protect itself from liability from claims which may arise during the performance of this Agreement, and Contractor encourages Owner to do so if Owner is uncomfortable with Owner’s or Contractor’s existing coverages. Owner shall purchase and maintain builder’s risk and property insurance for the full value of the project, including the labor, material, and equipment furnished by Contractor, covering fire, extended coverage, malicious mischief, vandalism, and theft on the premises to protect against loss or damage to material and equipment and partially completed work until the job is completed and accepted and Contractor’s equipment is removed from the premises. This insurance shall name Owner as the insured and shall include Contractor and, if applicable, Owner’s lender as “additional insureds.” Owner is responsible for all security and protection of the project and will be solely liable for all physical loss or damage, including loss or damage caused by theft, vandalism, and malicious mischief
- Additional Insured. If Customer requires and Contractor agrees to name Customer or others as an additional insured on Contractor’s liability insurance policy, Customer and Contractor agree that the naming of Customer or other parties as an additional insured is intended to apply to claims made against the additional insured to the extent the claim is due to the negligence of Contractor and is not intended to make the Contractor’s insurer liable for claims that are due to the fault of the additional insured.
- Waiver of Subrogation. Owner and Contractor waive all rights against each other and any of their subcontractors, sub-subcontractors, agents and employees, for damages to the extent covered by property insurance.
- Changes in the Work and Extra Work. A change order is any change to the original, permit set, plans and specifications. Owner may order changes in the Work and the total contract price shall be adjusted accordingly. Contractor shall not be required to perform any changes or additional work without a written request. Any penetrations through the roofing to be installed by Contractor not shown on the plans provided to Contractor prior to submission of this proposal shall be considered an order for extra work. Unless otherwise agreed in writing, all change orders shall be billed to Owner at the direct cost to the Contractor plus twenty-five percent (25%). Additional time needed to complete change orders shall increase the time needed for project completion.
- Availability of Site. Contractor shall be provided with direct access to the work site for the passage of trucks and materials and direct access to the roof. Owner will assure that the material can be truck delivered to a point 50’ from the roof and that Contractor’s lift equipment has access, when the material arrives, to lift the material onto the roof deck level at which is to be installed and be stockpiled at that level. Contractor shall not be required to begin work until underlying areas are ready and acceptable to receive Contractor’s work and sufficient areas of roof deck are available and free from dirt, water, or debris to allow continuous full operation until job completion. The expense of any extra trips by Contractor to and from the job as a result of the job not being ready for roof application after Contractor has been notified to proceed shall be borne by Owner.
- Site Conditions. Contractor shall be entitled to an equitable adjustment to the contract price due to concealed or unknown conditions encountered at the project including, without limitation, the existence of utilities, wet insulation, deteriorated deck, or other subsurface or latent conditions that are not disclosed in writing to Contractor. The raising, disconnection, re-connection, or relocation of any mechanical equipment on the roof that may be necessary for Contractor to perform the roofing work shall be performed by others or treated as an extra. The following shall be supplied to the Contractor at site of work: water, power, site security, and clear access to the work area.
- Electrical Conduit. Unless otherwise stated in this proposal, Contractor’s price is based upon there not being electrical conduit or other materials embedded within the roof assembly unless expressly identified on the face of this proposal. Customer will indemnify Contractor from any personal injury, damage, claim or expense due to the presence of electrical conduit, shall render the conduit harmless so as to avoid injury to Contractor’s personnel, and shall compensate Contractor for additional time and expense resulting from the presence of such materials.
- Back Charges. No back charges or claims for payment of services rendered or materials and equipment furnished by Customer to Contractor shall be valid unless previously authorized in writing by Contractor and unless written notice is given to Contractor within ten (10) days of the event, act, or omission that is the basis of the back charge.
- Working Hours. This proposal is based upon the performance of all work during the Contractor’s regular working hours. Extra charges will be made for overtime and all work performed other than during Contractors’ regular working hours, if required by the Customer.
- Interior Protection. Unless otherwise stated in this Proposal, Customer acknowledges that reroofing or re-decking of an existing building may cause disturbance, dust, or debris to fall into the interior and possibly, if hot asphalt is used, may result in asphalt dripage, depending upon deck conditions. Customer agrees to remove or protect property directly below the roof in order to minimize potential interior damage. Contractor shall not be responsible for disturbance, loss of use, clean up, or damage to interior property that Customer did not remove or protect prior to commencement of roofing operations. Customer shall notify tenants of re-roofing and the need to provide protection underneath areas being re-roofed. Owner shall hold harmless and indemnify Contractor from all damages, liabilities, attorney’s fees and other expenses incurred as a result of the Owner’s failure to fulfill its obligations under this paragraph.
- Owner acknowledges that Contractor may be repairing work that was previously damaged by mold, water, termites, or other conditions (“Pre-Existing Conditions”) unrelated to the work performed by Contractor on the Project. Accordingly, Contractor disclaims all liability for all claims, disputes, rights, losses, damages, causes of action or controversies (“Claims”) pertaining to Pre-Existing Conditions, whether those Claims arise in law, equity, contract, warranty, tort, or federal or state statutory claims. The Owner is solely liable and responsible for all damages, whether actual or consequential, arising out of or relating to Pre-Existing Conditions. In addition, Contractor disclaims all liability for all claims, disputes, rights, losses, damages, causes of action or controversies (“Claims”) pertaining to mold, mildew, fungi, spores, algae, microscopic organisms, hazardous chemicals, biological agents or allergens (collectively referred to as “Mold”), including Claims arising out or relating to the detection, removal, disposal, or remediation of Mold, whether those Claims arise in law, equity, contract, warranty, tort, or federal or state statutory claims, and whether those Claims are based on the acts or omissions of Contractor or individuals or entities under Contractor’s control. The Owner is solely liable and responsible for all damages, whether actual or consequential, caused by Mold and incurred by Owner, Contractor or third parties.
- Any express warranty provided (if any) by Contractor is the sole and exclusive remedy for alleged construction defects, in lieu of all other remedies, implied or statutory. Unless otherwise provided: THERE ARE NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. All warranties or guarantees provided by Contractor, if any, shall be deemed null and void if Owner fails to strictly adhere to the payment terms contained in the Agreement. All warranties and guarantees if any, provided under the Agreement are solely for the original Owner and are non-transferable, unless otherwise agreed to by Contractor and Owner in writing. A manufacturer’s warranty shall be furnished to Customer if a manufacturer’s warranty is called for on the face of this proposal. It is expressly agreed that in the event of any defects in the materials furnished pursuant to this contact, Customer shall have recourse only against the manufacturer of such material.
- Right to Stop Work. The failure of Customer to make proper payment to Contractor when due shall, in addition to all other rights, constitute a material breach of contract and shall entitle Contractor, at its discretion, to suspend all work and shipments, including furnishing warranty, until full payment is made or terminate this contract. The contract sum to be paid Contractor shall be increased by the amount of Contractor’s reasonable costs of shutdown, delay, and start-up.
- Damages and Delays. Contractor will not be responsible for damage done to Contractor’s work by others. Any repair of the same by Contractor will be charged at regular scheduled rates over and above the amount of this proposal. Contractor shall not be liable for damages based upon delay or liquidated damages or penalties resulting from any delay in completion of the Project. Contractor shall not be responsible for loss, damage, or delay caused by circumstances beyond its reasonable control, including, but not limited to acts of God, weather, accidents, fire, vandalism, federal, state or local law, regulation or order; strikes, jurisdictional disputes, failure or delay of transportation, shortage of or inability to obtain materials, equipment or labor; changes in the work and delays caused by others. In the event of these occurrences, Contractor’s time for performance under this proposal shall be extended for a time sufficient to permit completion of the Work. Owner and Contractor agree that the Contractor should be permitted to execute its work without interruption. If Contractor’s work is delayed at any time by any act or neglect of Owner and/or Owner’s representatives, employees, agents, guests, or invitees, or any other contractor employed by the Owner, or by any changes ordered in the work, then Contractor shall be reimbursed or paid for all additional costs or damages incurred as a result. This shall include damages related to lost use of equipment caused by the delay.
- 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. Specified quantities are intended to represent an average over the entire roof area. Contractor is not responsible for the actual verification of technical specifications of product manufacturers, i.e., R value, ASTM or UL compliance, but rather the materials used are represented as such by the manufacturer. Metal roofing and especially lengthy flat span sheet metal panels will often exhibit waviness, commonly referred to as “oil-canning.” Oil-canning pertains to aesthetics and not the performance of the panels and is not controlled by the Contractor. Contractor is not responsible for oil-canning or aesthetics. Oil-canning shall not be grounds to withhold payment or reject panels of the type specified. Title to roofing products passes to the Customer when said products are delivered to the job site.
- Fumes and Emissions. Customer acknowledges that odors and emissions from roofing products will be released and noise will be generated as part of the roofing operations to be performed by the Contractor. Customer shall be responsible for interior air quality; including controlling mechanical equipment, HVAC units, intake vents, wall vents, windows, doors, and other openings to prevent fumes and odors from entering the building Customer is aware that roofing products emit fumes, vapors, and odors during the application process. Some people are more sensitive to these emissions than others. Customer shall hold Contractor harmless, indemnify and defend Contractor from any and all claims, actions, proceedings, and complaints arising out of or relating to fumes, odors, and/or the indoor air quality during Contractor’s performance of the work.
- .At Contractor’s sole election, if a dispute shall arise between Contractor and Owner with respect to any matters or questions arising out of or relating to this Agreement or the breach thereof, such dispute, other than collection matters, shall be decided by arbitration administered by and in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Any such arbitration shall be conducted by a single arbitrator with expertise in the construction industry agreed upon by the parties and shall be conducted in Broward County, Florida. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. This Agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in any Court having jurisdiction thereof. However, in the event there is litigation over the enforcement of a collection matter or construction lien, the parties KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF OR PERTAINING TO THE AGREEMENT,NY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR PARTY RELATED TO THIS AGREEMENT; THIS IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL BEING A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.
- Choice of Law, Venue and Attorney’s Fees. This Agreement shall be governed by the laws of the State of Florida. Venue of any proceeding arising out of this Agreement shall be Broward County, Florida. The non-prevailing party in any legal or equitable action arising out of or relating to this Agreement including arbitration, administrative, appellate and/or bankruptcy proceedings shall reimburse the prevailing party on demand for all attorney’s fees, costs, and expenses incurred by the prevailing party in connection with the action.
- DAMAGE LIMITATION. In no event, whether based on contract, warranty (express or implied), tort, federal or state statute or otherwise arising from or relating to the Work and services performed under the Agreement, shall Contractor be liable for special, consequential, punitive, or indirect damages, including loss of use or loss of profits. Contractor and Owner agree to allocate certain of the risks so that, to the fullest extent permitted by law, Contractor’s total aggregate liability to Owner is limited to the dollar amount of the Agreement for any and all injuries, damages, claims, expenses or claim expenses including attorneys’ fees arising out of or relating to the Agreement regardless of whether it is based in warranty, tort, contract, strict liability, negligence, errors, omissions, or from any other cause or causes.
- Contractor’s Default. Should Owner allege that Contractor be in breach of a material term of the Agreement, Owner shall not have the right to terminate the Agreement for cause unless, as a condition precedent, Contractor is first provided with ten (10) days prior written notice of default (“Notice of Default”) and opportunity to commence to cure via certified mail, return receipt requested. Notice of Default is not effective until actual receipt by Contractor. In the event that Owner terminates the Agreement without providing Contractor the aforementioned Notice of Default and opportunity to cure, Owner understands and agrees that such action shall constitute a waiver of any and all claims for damages that could have been asserted by Owner and any and all defenses to nonpayment of Contractor for the Work performed. It is Owner’s responsibility to notify Contractor in writing within three (3) days (unless otherwise provided for in the Agreement) of the occurrence of any claim, defect, or deficiency arising out of work performed, services supplied, or materials provided by Contractor under this Agreement (“Occurrence”). Failure of the Owner to provide written notice of the Occurrence will result in the Owner waiving all claims that may be brought against Contractor because of or relating to the Occurrence, including claims arising in law, equity, contract, warranty, tort, or federal or state statutory claims. .OWNER’S DEFAULT. Owner shall be in default of this Agreement upon any of the following occurrences: (a) Owner fails to provide access to the job site or materially interferes with construction; (b) Owner fails to make timely payment under the terms of this Agreement; or (c) Owner otherwise violates a material provision of this Agreement. Upon a default by Owner, after providing seven (7) days written notice and opportunity to cure to Owner (such opportunity to cure required only where the default is of an ongoing nature capable of being cured), Contractor may terminate the Agreement and/or pursue all applicable legal or equitable remedies.
- For and in consideration of $10, which is already accounted for in the contract price, as well as the covenants and conditions herein, the Owner shall defend, indemnify, and hold the Contractor, their officers, directors, agents, and employees (individually the “indemnitee,” collectively, the “indemnitees”) harmless from and against any and all claims, demands, losses, damages, liabilities, expenses, or costs, including reasonable attorney’s fees, costs and expenses of investigation, penalties, interest and amounts paid in settlement (collectively “Losses”) incurred or to be incurred by Contractor, arising out of, relating to, or resulting from (1) claims or demands of the tenants or individual owners’ of the buildings located on the Property, (2) personal injury, (3) wrongful death, or (4) property damages; including claims for those damages caused partly or wholly as a result of the negligence or wrongful acts of any of the indemnitees if the damages claimed relate to or arise out of, or are connected with the Agreement or the actions necessary to perform same. Under no circumstance shall either party be liable to the other party for gross negligence, or willful, wanton or intentional misconduct as set forth in Florida Statute §725.06(c). The Owner’s duty under this provision is limited to a total of ONE MILLION AND NO/100 ($1,000,000) DOLLARS for all damages, including costs and attorney’s fees per occurrence for any single claim or suit. The parties further agree that this provision satisfies the requirements of Florida Statute §725.06 so that the indemnification provisions are valid and binding upon the Owner.
- Assignment: This Agreement shall not be assignable by Owner without the written consent of the Contractor. Any attempt at assignment may be deemed a default.
- Complete Agreement: This Agreement (including all exhibits and addenda) constitutes the sole and entire agreement between the parties. No modification, written or verbal, shall be binding upon either party unless agreed to in writing signed by both parties. Each provision of this Agreement is severable from every other provision, and if any provision is unenforceable, the remainder of the Agreement will remain valid and enforceable. This Agreement shall inure to the benefit of the heirs, personal representatives, successors and assigns of Contractor and Owner respectively as permitted. Each provision of the Agreement shall be construed as if both parties mutually drafted this Agreement.
- Notices: Unless otherwise provided herein, any notice required or permitted to be delivered under this Agreement shall be personally delivered or mailed by certified mail, return receipt requested, to the parties at the addresses set forth in the proposal and shall be effective upon personal delivery or two (2) days after deposit of the notice with the United States Postal Service.
- This Agreement incorporates by reference the Proposal, Statutory Warnings (if applicable) and the Limited Workmanship Warranty (if applicable). In the event of a conflict between those documents, this document controls and takes precedence. Owner acknowledges that it has received and reviewed all the documents referenced in the Agreement.
- The person signing on behalf of Owner acknowledges that it has received the board and unit Owner’s approval to the extent necessary; complied with all rules, regulations and laws governing this Contract; and that the person signing this Contract has the requisite authority to bind the Owner.
- It shall be the sole obligation of the Owner to determine the existence of restrictions contained in deeds, subdivision or neighborhood regulations which might relate to or restrict the improvements under this Agreement. Contractor shall have no liability or responsibility for any such non-conformity with such restrictions or requirements. Contractor shall be entitled to payment from Owner of all sums due hereunder not withstanding any injunction/prohibition against the work as a result of any violation of such restriction/requirement.
- Chapter 558 Notice of Claim. Any claims for construction defects are subject to the notice and cure provisions of Chapter 558, Florida Statutes.
- Use of Dumpster. Owner acknowledges and agrees that Contractor may place a dumpster on the property for collection of construction waste materials (the “Dumpster”). Owner agrees that Owner and Owner’s family, friends, licensees, or invitees of Owner, unit owners, or tenants will not place any materials in the Dumpster whatsoever or otherwise interfere with, enter into or move the Dumpster. Owner waives all claims against Contractor and agrees to indemnify, defend, and hold Contractor harmless for property damage or injuries or other damages that Owner or any member of Owner’s family, licensees, or invitees of Owner, unit owners, or tenants may suffer as a result of the Dumpster. Should Owner or any member of Owner’s family, licensees, or invitees of Owner, unit owners, or tenants place materials in the Dumpster, Owner agrees that it shall be responsible for any increased costs associated with such actions.
- Punch List Items. Contractor shall notify Owner when the Project reaches substantial completion. Owner shall be entitled to conduct a single, final walkthrough with Contractor and issue a punch-list for any repairs or corrections necessary to complete the work in accordance with the Contract Documents (“Punch List Items”). Contractor shall provide a list and expected completion date for any Punch List Items if such work shall require more than 7 days to complete. Any items identified within the punch-list that consist of additional work or work beyond the scope of an agreed upon change order shall be treated as a change order. The Parties agree that any work requested after the creation of the punch-list is either a change order or warranty claim. Upon Contractor’s communication to Owner that work is complete except for identified Punch List Items, Owner shall pay Contractor all but 5% of the contract price pending the completion of the identified Punch List Items. The remaining 5% owed shall be paid within twenty-four (24) hours of receiving notice that all Punch List Items are complete. If Owner believes that the Punch List Items are not all completed, such communication must be made to Contractor within twenty-four (24) hours of receiving notice that all Punch List Items are complete, and the Contractor must be provided with access to inspect the claimed non-completed Punch List Items within three (3) days of Owner’s notice to Contractor of said belief or else such claims will be deemed waived by Owner.
This Proposal is subject to revision or withdrawal by Contractor for any reason until communication of acceptance, and may be revised after communication of acceptance where an inadvertent error by Contractor has occurred. This Proposal expires thirty (30) days after the date stated above if not earlier accepted, revised, or withdrawn.
The undersigned hereby accepts this Proposal and, intending to be legally bound hereby, agrees that this writing shall be a binding contract and shall constitute the entire contract.