TERMS AND CONDITIONS
In addition to all terms and conditions contained in the parties’ Proposal, these Terms and Conditions shall apply to the relationship of the parties hereto with “Contractor” being Hutton Enterprises, Inc. and “Owner” being the entity signing the Proposal. These Terms and Conditions shall govern over any of Contractor’s Proposals approved by Owner. Contractor and Owner shall be collectively referred to as the “parties.” Contractor and Owner, in consideration of the mutual covenants and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged, hereby agree as follows on the date set forth in the approved Proposal:
The Contract Documents consist of these Terms and Conditions, the documents set forth above, and plans/drawings/specifications as referenced in these terms and conditions, if any. These documents form the Contract, and are as fully a part of the Contract as if attached to this Contract. The Contract represents the entire agreement between the parties and supersedes prior negotiations, representations or agreements, either written or oral. If anything in the other Contract Documents is inconsistent with this Contract, this Contract shall govern. The Contractor shall be furnished, free of charge, such copies of any and all drawings, plans, and specifications as are reasonably necessary for execution of the Work. The Order of precedence, in the event of any conflict in the Contract Documents, shall be this Contract, Change Orders, approved shop drawings / submittals, permitted plans, notes of the design professional contained on the permitted plans, and then all other documents incorporated herein.
The term “Work” means the materials and services expressly set forth in the Contract Documents. The Work may constitute the whole or a part of the Project. The scope of Work may be increased, decreased, changed or modified by agreement of the parties. All Exclusions are specifically excluded from this Contract, the Work and the Lump Sum Price. All Allowances are an estimate and costs and fees in excess of an Allowance item shall be billed and paid as a Change Order.
Subject to Exclusions and Allowances, Change Orders, claims and other additions and deductions as set forth herein, Owner shall pay to Contractor the Lump Sum Price.
Punch list or warranty items or issues do not constitute a basis for withholding payment to the Contractor. All payment shall be made in good U.S. funds. Unpaid amounts shall bear interest from the date payment is due at 1.5% per month.
Owner shall pay to Contractor the Initial Deposit within ten (10) days of the last party executing Contractor’s Proposal. On or before each Monthly Billing Date, Contractor shall submit to Owner, a progress payment application. Within ten (10) days after receiving a payment application, Owner shall pay Contractor the amounts due therein. Time is of the essence exclusively with respect to all progress payments by Owner.
A final payment (“Final Payment”), consisting of the unpaid balance of the Lump Sum Price shall be made within ten (10) days after Substantial Completion of the Work by Contractor. Time is of the essence exclusively with respect to final payment by Owner.
Any and all instructions (written or oral), acts, or omissions by Owner representative shall bind the Owner as if made by the Owner him/her/itself.
COOPERATION WITH OWNER’S LENDER
Contractor shall reasonably cooperate with any lending entity or entities providing financing for the Project and shall supply such information and certifications as may reasonably be required, from time to time, in order that Owner can satisfy conditions for lender to make advances upon Owner’s construction loan. However, Contractor shall not be obligated to subordinate its lien rights to lender.
The Owner shall immediately inspect the Work when it has been completed and any aspect of the Work not acceptable to the Owner must be specifically noticed in writing to the Contractor within five calendar days following completion of that aspect of the Work or the Work whole. The Contractor shall be given a reasonable opportunity to address the issue (as set forth herein and pursuant to Florida law). Acceptance of the Work and materials shall be presumed upon the Owner making payment to the Contractor for that portion of the Work.
The Contractor shall achieve Substantial Completion of the entire Work in a reasonable amount of time subject to the conditions and circumstances surrounding the Work and Project. The Owner shall make the Project available and take all steps necessary to allow the Contractor to perform the Work on the Project not less than fifty hours per week. The Substantial Completion Date is an estimate only.
Owner and Contractor may agree to changes, additions, or deletions in the scope of work without invalidating this Contract (“Change Order”). Contractor and Owner shall agree on said change order work and costs in writing and Contractor shall thereupon perform the changed Work in accordance with the terms of this Contract, Contract Documents and the Change Order. Contractor shall not be obligated to perform any changed work prior to mutual agreement of the parties. However, Contractor may rely on an Owner’s oral directive to perform changed work and the Owner remains obligated to pay for same.
To the extent that the Contract Documents are modified or require further development or the Owner or third parties cause any increase in scope, labor, systems, materials, kinds, quality and quality of materials, labor, finishes and/or equipment (herein collectively an “Additive Change”), the Lump Sum Price shall be adjusted. All Additive Changes must be paid in advance of the Contractor performing said Additive Change.
To the extent that the Contract Documents are modified or require further development or the Owner or third parties cause any decrease in scope, labor, systems, materials, kinds, quality and quality of materials, finishes and/or equipment (herein collectively a “Deductive Change”), the Contractor shall be entitled to a Contract Sum adjustment. The Contractor shall account for all Deductive Changes by crediting the Owner the reasonable value of the descoped work. Owner shall not be entitled to a credit for any overhead or profit on Deductive Changes or descoped work.
The Owner shall reimburse Contractor for all costs and fees incurred in connection with permits necessary for the Work and said costs shall be in excess of the Lump sum Price. In the event of increases in the cost of materials to the Contractor after the date of this Contract, the Contractor shall pass on such increases as extra costs which the Owner agrees to pay as an Additive Change. If material or equipment, which the Contractor is required to furnish under this Contract, become unavailable, either temporarily or permanently, subsequent to the execution of the Contract, through causes beyond its direct control, then in the case of temporary unavailability, the contract time shall be extended for such period of time as the Contractor shall be delayed by such unavailability; and in the case of permanent unavailability, the Contractor shall be excused from the requirement of furnishing such materials or equipment. The Owner agrees to pay the Contractor any increase in cost between the cost of the material or equipment or furnishing (as an Additive Change) which has become permanently unavailable and the cost of the closest substitute which is then reasonably available.
Before commencing the Work and until completion and final acceptance thereof by Owner, Contractor shall obtain and maintain at its expense, all such insurance required by Florida law. The Contractor is not responsible for any and/or all risk of loss of the Work or its work, labor, or materials furnished to the Project or work and materials surrounding or adjacent to the Work. The Owner agrees to fully insure, guard and protect the Project and the Work.
The Contractor warrants to the Owner only that all materials furnished by it will be of standard quality, type and condition, free from defects, and will be installed or applied in a good workmanlike manner, in reasonable compliance with manufacturer’s published application instructions. Should any defect occur within the one (1) year of Work, due to defective materials or workmanship supplied by the Contractor, the Contractor hereby agrees to repair same without charge, upon receipt of proper notice in writing, by certified mail, providing that the Contractor has been paid in full and the Owner was not in breach or terminated this Contract. There is no warranty and same shall be void if the total Lump Sum Price, as amended, is not paid in full or if the Work or work or materials supplied by the Contractor are abused, not maintained or modified in any way. All warranty work shall be performed during normal business hours and within a reasonable time following written notice to the Contractor. Contractor shall provide no warranty whatsoever on Owner’s Supplied Materials and/or on the work and/or materials the Owner’s alternate contractor(s) and/or specialty contractor(s).
The Owner warrants the constructability of any and all supplied plans, drawings, specifications, or Owner directions/instructions and Contract Documents. Contractor’s sole obligation is to perform the Work actually depicted and described in the Contract Documents and/or plans and specifications or the Work directed by Owner. The Contractor is not responsible for missing or conflicting information or components from the Contract Documents, plans and/or specifications or for the constructability, performance, or use of the Contract Documents, plans, specifications, or the Project. The Contractor has not and shall not interpret the Contract Documents, plans, specifications, or Project design in order to fill in missing information or confirm compliance with the applicable building code, life safety systems, or the Americans with Disabilities Act (ADA) which the Owner agrees are obligations of the design professional.
Unless permitted by Florida law, this Contract is not cancelable by Owner. If Owner (or those under its direct or indirect control) through active or passive acts, omissions, or negligence prevents, slows, or delays, the Contractor’s progress of the Work (for any reason whatsoever) or causes Work to be done out of sequence, or if the Owner fails to make timely payment to the Contractor, the Owner shall be in default of this Contract.
Upon default of this Contract by Owner, Contractor shall have no further obligations under this Contract and the Owner shall immediately pay to the Contractor the portion of the Lump Sum Price due and outstanding at the time of default plus Contractor’s lost profit on the uncompleted portion of the Work.
If a dispute should arise between Owner and Contractor under or relating to the Work or the Contract, or the breach thereof, then either party may seek redress of its grievances as to such disputes at law or in equity in a court of competent jurisdiction located in Orange County, Florida.
This Contract shall be governed and construed under the laws of the State of Florida. Each of the parties hereto consents to the jurisdiction and the venue of any such action in Orange County for all purposes in connection with this Contract. The Contractor and Owner waive their right to a jury trial in any and all actions and proceedings. The prevailing party in any such suit shall be entitled to recover from the other party any and all costs and expenses, including but not limited to reasonable attorney's fees and costs, incurred in having to enforce its rights hereunder, with or without suit.
The Owner is responsible for advising the Contractor, in writing, prior to the Contractor’s commencement of the Work, of the location of any life safety systems and utilities, as well as any other objects or structures, including but not limited to, telephone, computer, plumbing, water, sewer, electric and/or gas lines, which could be damaged by the Contractor’s personnel, machinery, materials, or vehicles during the performance of the Work. The Owner is responsible for providing ingress and egress to the Work. The Contractor employees shall not be required to Work in hazardous conditions and the Owner agrees to mitigate such conditions prior to commencement of the Work. Damage to the Work caused by acts of God or others is not the responsibility of the Contractor. The Contractor is not responsible for and shall be entitled to an Additive Change Order for any and all non-visible or unforeseen site conditions, be they underground, under-floor, behind-wall, or the like, or any and all other site conditions that are not disclosed to Contractor in writing prior to construction.
The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of any and all documents and information furnished by the Owner and its agents and design professionals.
LIMITATION OF LIABILITY AND INDEMNIFICATION
The Contractor’ liability in any action related to this Contract or the Work performed hereunder, shall in no event exceed the amount of the Lump Sum Price and such liability may be fully discharged by a reimbursement of any payments received by the Contractor under this Contract. This limitation of liability is expressly intended to apply to all types of claims, including but not limited to claims for the Contractor’s own negligence.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, IF ANY, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE CONTRACTOR WILL NOT BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES AND ANY CLAIM AGAINST THE CONTRACTOR OR ITS AGENTS, OFFICERS, AND EMPLOYEES SHALL BE LIMITED TO THE REPLACEMENT VALUE OF ITS WORK AND ONLY IF SUCH WORK OR MATERIAL IS FOUND TO BE DEFECTIVE.
Notwithstanding anything else to the contrary, the Contractor shall have no liability or responsibility for any damages and/or delays caused by others or for damages or delays either before commencement of, or during said Work, or after said Work, caused by structural faults, temperature changes and differentials, sun and weather exposure, strikes, material shortages, labor shortages, war, Acts of God, rain, wind, wind storms, fire, floods, theft, vandalism, hurricanes or any event beyond its direct and immediate control. Any interruption in the Work which results in lost time and/or material and is not the sole and direct fault of the Contractor, shall be paid by the Owner as an extra cost according to time and material lost as an Additive Change.
If any claim is made for damage or injury including death, the Owner agrees to indemnify and hold the Contractor harmless from and against such claim and all loss, damage, injury and expense (including reasonable attorney's fees and costs) that the Contractor may sustain when such claim is directly or indirectly based or related to the Owner's or its agents', contractors', or employees' negligent, intentional or wrongful acts or omissions.
OWNER SUPPLIED MATERIALS AND LABOR
If the Owner, before or during the course of the Work, purchases it’s own materials and/or supplies and/or directly retains the labor and/or services of an alternate contractor(s) and/or specialty contractor(s) (herein collectively “Owner Supplied Materials and Labor”), then Owner shall (1) be solely responsible for the timely delivery, coordination, insurance, protection, and security of and for the Owner Supplied Materials and Labor and (2) take all steps necessary to not adversely affect the Contractor’s construction schedule or the sequence of the Contractor’s Work. At Owner’s sole cost and expense, Owner shall fully abide by and comply with all of Contractor’s requests that any or all Owner Supplied Materials and Labor be furnished or held (and stored and not delivered/commenced) at the dates, times, and locations designated by Contractor at its sole and absolute discretion. Contractor shall have sole discretion to allow or refuse to allow any trade from working under its permit.
Additionally, all such labor and/or services of an alternate contractor(s) and/or specialty contractor(s) shall be performed under permits, licenses, and insurance completely separate and apart from the permits, license, and insurance covering the Work of the Contractor under this Agreement. The Owner hereby agrees to defend, indemnify and hold Contractor harmless from any and all costs, fees, expenses, damages, losses, impacts, and injuries (including death) caused by the Owner’s alternate contractor(s) and/or specialty contractor(s) for any reason whatsoever. Notwithstanding the foregoing, the Owner shall, within five calendar days of retaining said alternate contractor(s) and/or specialty contractor(s), take all steps necessary to cause said alternate contractor(s) and/or specialty contractor(s) to furnish to Contractor valid, effective, and enforceable certificates of insurance naming Contractor as an additional insured on said alternate contractor(s) and/or specialty contractor(s) policy. Said certificate and policy shall specifically prohibit said alternate contractor(s) and/or specialty contractor(s) from amending or canceling said policy without 30 days prior written notice to Contractor and shall be issued in amounts no less than $1,000,000 by an A+ or better AM Best rated company licensed in Florida. Contractor, at its sole and absolute discretion, may slow or stop all Work until such time as said insurance certificates are provided. The Owner shall be responsible for any and all incurred demobilization and/or remobilization costs, fees, and/or impacts suffered by Contractor as an Additive Change Order.
Those portions of the Work that the Contractor does not customarily perform with the Contractor's own personnel shall be performed under subcontracts or by other appropriate agreements with the Contractor. The Owner may designate specific persons or entities from whom the Contractor shall obtain bids. Notwithstanding, the Contractor has the absolute and sole discretion to select and hire the subcontractors and suppliers if its choice.
RELATIONSHIP OF THE PARTIES
The Contractor shall cooperate with the Architect (if any) and exercise the Contractor's skill and judgment in furthering the interests of the Owner; to furnish business administration and supervision; to supply workers and materials as determined by Contractor; and to perform the Work in a workmanlike manner consistent with the Contract Documents. The Owner agrees to furnish and approve, in a timely manner, information requested by the Contractor and to make payments to the Contractor in accordance with the requirements of the Contract Documents. The Owner shall, at the request of the Contractor, furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner’s obligations under the Contract. Furnishing of such evidence shall be a continuing condition precedent to the Contractor’s further obligation under this Contract.
In the event that any term, provision, or part of the Contract is held to be illegal, invalid or unenforceable, such term, provision, or part shall be deemed severed from the Contract and the remaining terms, provisions and parts shall remain unaffected thereby. Where the context requires, neutral terms used herein shall include the masculine and feminine, and singular terms shall include the plural, and vice versa. This Contract, including the documents incorporated herein by reference, embodies the entire agreement of the parties and supersedes all prior negotiations, agreements and understandings relating to the subject matter hereof. No requirement of this Contract may be waived or modified except by a written document signed by at least one Authorized Representative of each party. The captions of the articles in this Contract are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of any article or paragraph herein. All reference to days shall mean calendar days unless otherwise specified. All notices called for in this Agreement shall be in writing and addressed to one or more of the Authorized Representatives set forth in this Agreement. The person signing Contractor’s Proposal represents and warrants that he/she is the lawful fee simple owner of the property where the Work is being performed or is an expressly authorized agent for the owner of the property. Notwithstanding, the party signing Contractor’s Proposal agrees to be individually and personally bound by the terms and conditions contained herein and shall timely pay the Contractor for the Work and materials furnished as set forth herein.