Building Construction Agreement - Template, Sample Form Pro · US-law
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BUILDING CONSTRUCTION AGREEMENT
State of ________
RECITALS
This Building Construction Agreement (the "Agreement") is made and entered into as of ________ (the "Effective Date") by and between ________, a ________ organized under the laws of the State of ________, acting by and through ________ as its duly authorized representative (the "Builder"), holding contractor's license number ________, with its principal place of business at:
________
and ________ (the "Client"), with an address at:
________
The Builder and the Client are each referred to herein as a "Party" and collectively as the "Parties."
WHEREAS, the Builder desires to provide construction services to the Client, and the Client desires to obtain such services from the Builder, all upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, promises, and conditions set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
§ I. SERVICE DESCRIPTION
1. Commencing on ________, the Builder shall furnish to the Client the following services (collectively, the "Services"):
________
§ II. SCOPE OF WORK
2. The Builder shall provide all services, materials, equipment, and labor necessary for the construction of the following structure: ________, described above, upon the Client's real property located at the following address (the "Worksite"):
________
3. The Services include all building and construction materials, all necessary labor and site security, and all tools and machinery required for the completion of construction.
4. In addition to the construction of the structure, the Builder shall be responsible for the following additional improvements:
(a) landscaping;
(b) walkways;
(c) painting;
(d) sewer and water systems;
(e) steps;
(f) driveways;
(g) patio; and
(h) ________.
5. The Builder shall be responsible for no other building additions or improvements unless specifically agreed to in writing by the Parties.
§ III. WORKSITE
6. The Client represents and warrants that the Client is the lawful owner of the property described herein and is duly authorized to enter into this Agreement.
7. Prior to the commencement of construction, the Client shall provide a readily accessible building site that complies with all applicable zoning requirements for the structure, with the boundaries of the Client's property clearly identified by stakes at all corners. The Builder shall maintain such stakes in their proper position throughout the course of construction.
§ IV. PLANS, SPECIFICATIONS, AND CONSTRUCTION DOCUMENTS
8. The Client shall make available to the Builder all plans, specifications, drawings, blueprints, and similar construction documents necessary for the Builder to perform the Services described herein.
9. All such materials shall remain the property of the Client. The Builder shall promptly return all such materials to the Client upon completion of the Services.
§ V. MATERIALS AND/OR LABOR PROVIDED
10. The Builder shall provide to the Client a list of each and every party furnishing materials and/or labor in connection with the Services, together with the dollar amounts due or expected to become due in connection with the provision of the Services.
11. Such list of materials and labor shall be attached to this Agreement as Exhibit A.
12. The Builder declares, under the laws of the State of ________, that such list is a true and correct statement of each and every party furnishing materials and/or labor in connection with the Services described herein.
13. The Builder may substitute materials only with the express prior written approval of the Client, provided that any substituted materials shall be of a quality no lesser than that previously agreed upon by the Parties.
14. The cost of materials furnished by the Builder shall be included in the total payment due from the Client as set forth in § VIII (Payment). In the event material prices change due to causes beyond the reasonable control of the Builder, the Parties shall agree in writing for the Client to pay an additional sum to cover such excess material cost.
§ VI. CHANGE ORDERS
15. The Client, or any other authorized person (including, without limitation, a lender, public body, or inspector), may make changes to the scope of the work from time to time during the term of this Agreement.
16. Any such changes or modifications shall be made only by a written "Change Order" signed and dated by all Parties. Each such Change Order shall become a part of this Agreement.
17. The Client agrees to pay any increase in the cost of the construction work resulting from any written, dated, and signed Change Order.
18. In the event the cost of a Change Order is not known at the time the Change Order is executed, the Builder shall estimate such cost in good faith, and the Client shall pay the actual cost, whether or not such cost exceeds the estimated cost.
§ VII. BUILDING SCHEDULE
19. The Builder shall commence work on this project within thirty (30) days of ________ and shall complete the work on or before ________.
20. Time is of the essence with respect to all obligations under this Agreement.
21. Upon completion of the project, the Client shall sign a Notice of Completion within fourteen (14) days of such completion. If the project passes final inspection and the Client fails to render a Notice of Completion within such period, the Builder may sign the Notice of Completion on behalf of the Client.
§ VIII. PAYMENT
22. Payment shall be made to ________ in the total amount of $________ (________), payable as follows: ________.
23. For any payment not paid within thirty (30) days of its due date, the Client shall pay a late charge of $________ (________), provided that in no event shall any late charge or interest exceed the maximum amount permitted under applicable law.
§ IX. LEGAL COMPLIANCE
§ X. PERMITS
26. The Builder shall obtain all necessary building permits.
27. The Builder shall apply for and obtain any other permits and licenses required by the applicable city or municipal government to perform the work, the cost of which shall be included as part of the payment to the Builder under this Agreement.
§ XI. INSURANCE
28. Before commencing work under this Agreement, the Builder shall furnish certificates of insurance to the Client evidencing that the Builder maintains in force valid insurance covering its full liability under the Workers' Compensation laws of the State of ________, and shall furnish and maintain commercial general liability insurance and builder's risk insurance covering bodily injury or death of any person or persons and property damage arising from the performance of the Services, each in amounts not less than $________ per occurrence. The Builder shall name the Client as an additional insured where applicable.
§ XII. OWNERSHIP OF WORK PRODUCT
29. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively, the "Work Product") developed in whole or in part by the Builder specifically in connection with the Services shall be the exclusive property of the Client. Upon request, the Builder shall execute any and all documents reasonably necessary to confirm or perfect the Client's exclusive ownership of the Work Product.
§ XIII. CONFIDENTIALITY
30. The term "Confidential Information" shall include any proprietary information, in whatever form, that:
(a) is provided by the Client to the Builder, including information regarding the Client's business, finances, prospects, operations, products, employees, technologies, contact lists, and financial models (including information transferred in writing, verbally, visually, electronically, or by any other means);
(b) concerns any agreements that the Builder may assist the Client in entering into in the course of providing the Services; or
(c) consists of analyses or other internal, non-redacted memoranda or documents prepared by the Builder that are derived from, or include material portions of, the Confidential Information.
31. Confidential Information shall not include any information that:
(a) was already known to the Builder at the time of its disclosure without obligation of confidentiality;
(b) is or becomes publicly known through no wrongful act of the Builder;
(c) is communicated to a third party with the express written consent of the Client; or
(d) is required by law, regulation, or valid court or governmental order to be disclosed, provided that before making such disclosure the Builder shall, to the extent legally permitted, promptly give the Client written notice and reasonably cooperate in the Client's efforts to obtain confidential treatment of such information.
32. The Builder shall safeguard and keep confidential the Confidential Information and shall not disclose any Confidential Information to any other person or entity except as necessary to perform the Services.
33. The Builder shall not use the Confidential Information for any purpose other than the performance of the Services for the Client.
34. All Confidential Information and any copies thereof shall be returned to the Client promptly upon its written request and shall not be retained in any form by the Builder. The obligations of this § XIII shall survive the termination or expiration of this Agreement.
§ XIV. INDEMNIFICATION
35. To the fullest extent permitted by applicable law, and except that this Section shall not be construed to require indemnification to a greater extent than permitted under the public policy of the State of ________, the Builder shall indemnify, defend, and hold harmless the Client from and against all claims, losses, liabilities, damages, and expenses, including reasonable attorneys' fees, arising out of or in connection with the Builder's performance of the Services under this Agreement.
36. Such indemnity shall apply even where the Client is partly responsible for the claim, damage, injury, or loss; provided, however, that the Builder shall not be obligated to indemnify against claims or losses to the extent caused by the negligence, willful misconduct, or breach of contract of the Client or the Client's agents or employees.
§ XV. WARRANTY
37. The Builder shall perform the Services and meet its obligations under this Agreement in a timely and workmanlike manner, employing knowledge and methods that meet generally accepted standards in the Client's community and region, and shall provide a standard of care equal to or superior to that customarily used by service providers on similar projects.
38. The Builder shall construct the structure in conformity with the applicable plans, specifications, and any breakdown and binder receipt signed by the Parties. This warranty shall remain in effect for a period of ________ following completion, and shall not limit any longer warranty period required by applicable law.
§ XVI. WORKSITE ACCESS
39. The Client shall allow free access to the work areas for workers and vehicles and shall provide areas for the storage of materials and debris.
40. Driveways shall be kept clear for the movement of vehicles during work hours. The Builder shall make reasonable efforts to protect driveways, lawns, shrubs, and other vegetation.
41. The Builder shall keep the Worksite clean and orderly and remove all debris as needed during working hours so as to maintain conditions that do not create health or safety hazards.
§ XVII. UTILITIES
42. The Client shall provide and maintain water and electrical service, and shall connect permanent electrical service, gas service, or oil service, whichever are applicable, including tanks and lines, to the building constructed under this Agreement after an acceptable cover inspection has been completed and prior to the installation of any interior wall covering.
43. The Builder shall, at the Client's expense, connect sewage disposal and water lines to the building prior to the start of construction and shall maintain such lines during construction as applicable.
44. The Client shall permit the Builder to use, at no cost, any electrical power and water necessary to carry out and complete the work.
§ XVIII. INSPECTION
45. The Client shall have the right to inspect all work performed under this Agreement. All defects and uncompleted items shall be reported promptly in writing.
46. All work that is required to be inspected, tested, and certified by an engineer as a condition of any governmental department or state agency, or inspected and certified by the local health officer, shall be performed at each required stage of construction and before further construction may continue.
47. All such inspection and certification shall be performed at the Client's expense.
§ XIX. DEFAULT
48. The occurrence of any of the following shall constitute a material default under this Agreement:
(a) the failure of the Client to make a required payment when due;
(b) the insolvency of either Party, or if either Party shall, voluntarily or involuntarily, become a debtor or seek protection under Title 11 of the United States Bankruptcy Code;
(c) the bringing of any lawsuit, claim, seizure, lien, or levy for labor performed or materials furnished to the project by either Party, or the making of a general assignment for the benefit of creditors, or any application or sale for or by any creditor or governmental agency against either Party; or
(d) the failure of the Client to make the building site available, or the failure of the Builder to deliver the agreed-upon Services in the time and manner provided for in this Agreement.
§ XX. REMEDIES
49. In addition to any and all other rights a Party may have available under the law of the State of ________, if a Party defaults by failing to substantially perform any provision, term, or condition of this Agreement (including, without limitation, the failure to make a monetary payment when due), the non-defaulting Party may terminate this Agreement by providing written notice to the defaulting Party.
50. The Party receiving such notice shall have two (2) weeks from the effective date of the notice to cure the default(s), or to commence substantial cure where the default cannot reasonably be cured within two (2) weeks, unless the Parties otherwise agree in writing.
51. Unless waived by the Party providing notice, the failure to cure or to commence curing the default(s) within such period shall result in the automatic termination of this Agreement.
§ XXI. FORCE MAJEURE
52. If performance of this Agreement or any obligation hereunder is prevented, restricted, or interfered with by causes beyond a Party's reasonable control, and if the Party unable to perform gives the other Party prompt written notice of such circumstances, then the obligations of the Party invoking this provision shall be suspended to the extent necessitated by such circumstances.
53. The term "Force Majeure" shall include, without limitation, acts of God, fire, explosion, vandalism, flood, storm, epidemic, illness, injury, earthquake, general unavailability of essential materials, orders of military or civil authority, national emergencies, riots, strikes, lock-outs, work stoppages, other labor disputes, and supplier failures.
54. The Party excused by such events shall use all reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch once such causes are removed or cease.
55. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party or its employees, officers, agents, subsidiaries, or affiliates.
§ XXII. TRANSFER OF RIGHTS
56. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
57. Neither Party shall assign its interests in this Agreement to any other party without the prior written consent of the other Party.
§ XXIII. DISPUTE RESOLUTION
58. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through negotiation. Any dispute not so resolved shall be submitted to ________, and the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs to the extent permitted by applicable law. The exclusive venue for any judicial proceeding shall lie in the state or federal courts located in ________.
§ XXIV. ENTIRE AGREEMENT
59. This Agreement, together with all exhibits and Change Orders, contains the entire agreement of the Parties with respect to its subject matter and supersedes all prior and contemporaneous understandings, whether oral or written.
§ XXV. SEVERABILITY
60. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force and effect.
61. If a court of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable but that, by limiting such provision, it would become valid and enforceable, then such provision shall be deemed written, construed, and enforced as so limited.
§ XXVI. AMENDMENT
62. This Agreement may be modified or amended only by a writing signed by both Parties.
§ XXVII. WAIVER OF CONTRACTUAL RIGHT
63. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
§ XXVIII. NOTICES
64. All notices required or permitted under this Agreement shall be in writing and shall be deemed duly given when delivered personally, sent by nationally recognized overnight courier, or sent by certified mail, return receipt requested, to the addresses of the Parties set forth above, or to such other address as a Party may designate in writing.
§ XXIX. APPLICABLE LAW
65. This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict-of-laws principles.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below:
BUILDER
________________________
________, Authorized Representative of ________
Date: ________
CLIENT
_________________________
________, Client
Date: ________
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