TERMS & CONDITIONS
COMPLETION PER CODES: All work shall be completed in a workmanlike manner and in accordance with this Agreement and all plans and specifications and building codes. Approval of Contractor’s work by an inspecting governmental agency shall be conclusively presumed and deemed to be completion of that work in a workmanlike manner and in accordance with this Agreement and all plans and specifications and building codes.
RESPONSIBILITIES: Contractor shall not be liable or responsible to Owner nor be deemed to have defaulted under or breached this Agreement for failure or delay in performing any term of this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the control of Contractor including but not limited to hurricanes, fire, floods, lightning, embargoes, inability to obtain material, war, acts of war (whether declared or not), insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or by Owner (a Force Majeure Event”). Any costs associated with damages/delays caused by a Force Majeure Event shall be the Owner’s responsibility. The Owner assumes all responsibility for and shall indemnify, defend and hold harmless Contractor with regard to the clearance of, or damage to anything in the area of access, whether on the Owner’s property or others, which indemnification shall survive termination of this Agreement. Contractor is not responsible for damage to such areas of Owner’s property or the property of others, including but not limited to, curbs, sidewalks, fencing, driveways, sprinklers, patios, lawns, trees, shrubs, plants and appurtenances.
ASSUMPTION OF RISK: Although Contractor has taken commercially reasonable steps to provide Owner, Owner’s family members, guests and invitees with appropriate safety protections around the area where the Scope of Work is being conducted, Owner for Owner’s self or selves and on behalf of Owner’s family members, guests and invitees, acknowledges and agrees that any construction site can be dangerous and, therefore, Owner agrees to assume full responsibility for the risks from the construction or installation of heating/cooling system by Contractor which can result in loss of or damage to Owner’s, Owner’s family members’, Owner’s guests’ and invitees’ equipment, possessions or even accidental injury, or in the extreme cases, permanent trauma or death and Owner will not hold the Contractor liable in any way for same and Owner shall hold, defend and save harmless Contractor from any liability with regard to same, which indemnification shall survive termination of this Agreement.
CHANGES: All changes or additions to this Agreement occasioned by the Owner or the Owner’s agent shall be authorized in writing or by a signed work order executed by the Owner or his agent and signed by an authorized representative of the Contractor. However, should it, in the judgement of the Contractor or his agents, become reasonably necessary to effect certain changes, additions or deletions in the Scope of Work to be done for any reason including but not limited to existing dimensions, structures, encumbrances, physical properties of the real property or its improvements, landscaping, sea walls, pipelines, wiring, etc., the Owner hereby authorizes the Contractor to make such changes, modifications, alterations, or additions and agrees to pay for such items upon billing. Further, in such event or events as the Owner occasions changes, additions, modifications, etc. but fails to obtain execution of a work order but the work nevertheless is done by the Contractor, then in such event or events charges for such items shall likewise be due when billed.
ELECTRICAL: The Contractor relies upon the Owner’s representation that there exists adequate electrical power equipment to operate and support the electrical needs of the pool and related electrical equipment and if any increase in service, change of overhead or underground service, switches, panels, circuit boxes or the like are needed (including magnetic starters), same shall be done or provided at the Owner’s cost and expense, it being understood that such additions and changes are not covered in the Agreement price. It is understood that basic electrical pool hookup is included in this Agreement, which is limited to the wiring of the pump motor, light timer and motor switch to the Owner’s residence. Notwithstanding the foregoing, any unforeseen circumstances, including but limited to service increase, or relocation or power lines, grouping of power line, grouping of mains, meters or conduits are Owner’s responsibility. Locations of switches and light junction box will be left to the discretion of the electrician.
SITE AND GROUND CONDITION: Owner hereby grants Contractor: (i) ample access area upon the site for equipment, personnel and materials delivered to the construction site; (ii) full use of water and electrical power and (iii) the right to store material and debris during the course of construction, Owner acknowledges and agrees that Owner shall be responsible for any pre-existing conditions adversely affecting the pool encountered while Contractor is engaged in the construction or remodeling Owner’s pool, including with regard to remodeling cracked beams and piping, among other issues, it being understood that modifying the pre-existing conditions to permit Contractor to finish its Scope of Work is not covered in the Agreement price. Any items relating to the site which are encountered shall be considered as not included in this Agreement and shall be the Owner’s responsibility. This refers to soil conditions or objects above or below the ground, such as but not limited to, cesspools, septic tanks, gas pipes, water pipes, drainage pipes, irrigation pipes, underground electrical conduits or other obstructions or other unknown ground conditions such as but not limited to hard rock or muck. Unforeseen sight conditions may result in poor yard drainage of the site. This is usually caused by improper grading, landscaping or poor soil percolation. No matter the cause, Contractor will not be responsible for poor site drainage. Owner acknowledges and agrees that if any additional work or materials are required thereby to complete the Agreement, Contractor is hereby authorized by Owner to undertake such work and the cost shall be added to the Agreement price and Owner agrees to pay for such work upon billing, If, after the work is started by Contractor the soil condition requires extra steel or concrete or other than that as specified on the front of this Agreement in the Scope of Work, Owner agrees to pay for the additional labor and materials, survey, geological report, topography maps, or soil reports and should same be required by any applicable building departments the Owner is to supply same. Contractor assumes no responsibility for sea walls or tiebacks whatsoever.
OWNER’S EXPENDITURE: No Owner may incur any expenditures to be charged to the Contractor or credited against this Agreement without the prior written consent and approval of the Contractor.
OTHER TRADES: Contractor agrees to work on Owner’s job with all other trades regardless of their union or non-union affiliations. Refusal of any of the trades to work with Contractor’s craftsmen for any reason whatsoever shall be the Owner’s responsibility. Any delays or extra costs on the Job for such reasons shall be charged to the Owner.
FINAL REPOSITORY: There are no promises, agreements, or understandings between the undersigned parties which are not expressed in this Agreement. This Agreement cannot be amended, altered, or modified except in writing signed by both parties and, furthermore, Contractor is not and shall not be bound to any commitments or agreement not specified on Contractor’s copy of this Agreement.
HURRICANE SHUTTERS/HURRICANE PROTECTION SYSTEMS: Owner acknowledges and agrees that the installation of heating/cooling systems and the work relating thereto can interfere with hurricane shutter/hurricane protection systems. CONTRACTOR SHALL NOT BE LIABLE FOR DAMAGE TO OR THE FAILURE TO PERFORM FOR WHATEVER REASON OF ANY HURRICANE SHUTTER/HURRICANE PROTECTION SYSTEMS, INCLUDING BUT NOT LIMITED TO PANELS, TRACKS, NETTING AND ANCHORS. Owner acknowledges and agrees that Owner is wholly responsible for (i) its Hurricane Shutter/Hurricane Protection Systems; (ii) the need for Owner to consult with a Hurricane Shutter/Hurricane Protection System professional to determine the impact of Contractor’s Scope of Work on Owner’s Hurricane Shutter/Hurricane Protection System; and (iii) any additional costs associated with either (i) or (ii) above shall be solely the Owner’s responsibility and not included in the Agreement price.
ATTIC WORK: Owner acknowledges and agrees that it may be recommended that the installation of heating/cooling systems and the work related thereto be relocated from the attic to another location. Owner acknowledges and agrees that Owner is wholly responsible for any damage caused to the system in the attic if Owner fails to heed Contractor’s recommended system relocation.
MOLD ABATEMENT: Contractor specializes in mold abatement and its multistep process as part of the installation of heating/cooling systems and the work related thereto. Owner acknowledges and agrees that Owner shall be wholly responsible for any mold or microbial growth on the heating/cooling systems as a result of opting out of Contractor’s recommended mold abatement process. Contractor shall not be liable for any mold or microbial growth on the heating/cooling systems as a result of Owner’s decision to decline mold abatement services from Contractor.
WAIVER OF SUBROGATION: Each party waives (for itself and its insurance carrier) all rights against the other party and the other party’s respective employees, agents, suppliers and subcontractors to recover damages caused by fire or other perils to the extent such damages are covered by insurance. This provision shall have no effect to the extent that it invalidates or otherwise limits the insurance coverage of a party.
RISK OF LOSS: Contractor shall not be responsible for damage or loss to any material or equipment sold hereunder once it has been delivered to Owner’s Premises it being understood that the risk of loss for same shall entirely be the Owner’s.
PAYMENT SCHEDULE: Owner acknowledges and agrees to the following payment schedule:
TOTAL JOB COST: $_____________
1st Payment 30% Due upon signing $_______________
2nd Payment 50% Due upon Rough Inspection $__________________
Final Payment 20% Due upon Final Inspection $___________________
PAYMENT & DEFAULT: Contractor reserves the right at anytime to stop work and suspend warranties until such time as any past due payments according to the Payment Schedule of this Agreement and/or billings are brought up to date. Owner expressly agrees that Contractor shall retain title to all equipment and removables, including safety equipment, cleaning equipment, and related items, etc., until full remittance has been made. Owner expressly agrees that the Contractor does and shall continue to have permission for entry to or upon Owner’s property and premise to remove these items in accordance with this Paragraph. Owner will be in default hereunder if: (i) any payment called for under this Agreement is not made promptly when due; (ii) any covenant, promise, obligation or undertaking hereunder made by Owner is not promptly performed; or (iii) any conditions represented or warranted by Owner hereunder prove to be untrue.
CONTRACTOR REMEDIES UPON OWNER DEFAULT: In the event of default by Owner hereunder, Contractor may do any or all of the following, (i) suspend its work and remove its equipment from the construction location; (ii) remove any equipment related to the heating/cooling system, whether or not it has been installed and whether or not it has been placed in operation and in this regard, Owner agrees that Contractor may enter upon Owner’s property and premises for the purpose of repossessing such equipment without liability to Owner for trespass or any other reason; and/or (iii) retain all monies paid hereunder, regardless of the stage of completion of the Scope of Work and bring any appropriate action in court to enforce its rights; and (iv) void all warranties. Owner agrees to pay all costs and expenses, including investigative costs and reasonable attorney’s fees and expenses incurred at the trial and appellate levels incurred by Contractor in enforcing its rights under this Agreement.
PLACE OF SUIT/WAIVER OF JURY TRIAL: Contractor and Owner agree that any claim or action by either party arising from the existence of this Agreement or any warranty under this Agreement shall be brought exclusively in a state court located in Palm Beach County, Florida. Owner waives all rights to seek specific performance as a remedy for any claim or action against Contractor. Wherever the context shall require, all words herein in the masculine gender shall be deemed to include the feminine or neutraler gender, all singular words shall include the plural, and all plural shall include the singular. Owner and Contractor agree and acknowledge that each has reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. IT IS MUTUALLY AGREED BY AND BETWEEN THE OWNER AND CONTRACTOR THAT OWNER AND CONTRACTOR SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATI’ERS ARISING OUT OF THIS AGREEMENT OR ANY WARRANTY UNDER THIS AGREEMENT.
Additional permit costs associated with delays of the project, not due to the contractor will be the responsibility of the owner or Oowner’s representative.
Periodically municipalities may have unique permitting requirements or additional requirements during construction, or at the completion of construction. If required, then it will be supplied by Oowner.
As a condition precedent to instituting litigation against Contractor for any claim, action or cause of action arising out of or relating to this Agreement, the Owner shall be required to complete non-binding mediation in Palm Beach County, Florida before a Florida Circuit Court Certified Mediator approved by the Contractor in accordance with the mediation rules of 15th Judicial Circuit in and for Palm Beach County, Florida.
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:
Construction Industry Licensing Board
260 1 B lair Stone Road
Tallahassee, Florida 32399-0783
(850) 921-6593
CHAPTER 558 NOTICE OF CLAIM
CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN ALLEGED CONSTRUCTION DEFECT. SIXTY DAYS BEFORE YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THESE ARE STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT YOUR INTEREST.
