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1. Definitions: The terms defined in the body of these General Terms and Conditions have the meaning assigned therein, and the following terms are defined as follows:
a. “Contract” shall have the meaning assigned in Article 2 of these General Terms and Conditions.
b. “Contractor” shall mean Alta Vista Roofing, LLC.
c. “Customer” shall mean Person authorized to execute the Proposal and be bound by the Contract Documents.
d. “Contract Documents” shall have the meaning assigned in Article 2 of these General Terms and Conditions.
e. “Contract Sum” shall mean the stipulated sum set forth in the Proposal.
f. “Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority, or any other entity.
g. “Substantial Completion” shall have the meaning assigned in Article 3 of these General Terms and Conditions.
2. Contract Documents
a. The Contract Documents consist of the Proposal executed by the Customer, these General Terms and Conditions, drawings (if any), specifications (if any), addenda issued prior to execution of the Proposal, and approved change orders and modifications (collectively “Contract Documents”).
b. Entire Agreement. The Contract Documents represent the entire and integrated agreement between the parties (“Contract”) and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written modification in accordance with Article 8.
c. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all.
3. The Work
a. The term “Work” means the construction and services required by the Contract, and includes all other labor, materials, equipment, and services provided, or to be provided, by the Contractor to fulfill the Contractor’s obligations.
b. The “Scope of the Work” is limited to the description set forth in the Proposal.
c. The term “Substantial Completion” shall mean that stage in the progress of the Work when the Work or a designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Client can occupy or utilize the Work for its intended use.
4. Payments
a. Customer shall pay Contractor within thirty days of Customer’s receipt of Contractor’s invoice or application for payment.
b. Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at a rate of 12% per annum.
5. Information and Services Required of the Customer
a. Contractor shall be entitled rely on the plans, specifications, decisions and information provided by the Customer (collectively “Customer Provided
Information”). To the extent there are errors or omissions in the Customer Provided Information, the Contractor shall be entitled to compensation for additional time and/or construction costs expended in the course of remedying any errors or omissions.
b. The Customer shall pay for any building permit, other permits, governmental fees, licenses, inspections, approvals, easements, assessments, and charges necessary for proper execution and completion of the Work.
c. Prior to commencement of the Work, at the written request of the Contractor, the Customer shall furnish to the Contractor reasonable evidence that the Customer has made financial arrangements to fulfill the Customer’s obligations under the Contract. The Contractor shall have no obligation to commence the Work until the Customer provides such evidence.
6. Review of Contract Documents and Field Conditions by Contractor
a. Contractor represents that Contractor has visited the site, become familiar with local conditions under which the Work is to be performed, and correlated personal observations with requirements of the Contract Documents.
b. The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Customer. Before commencing activities, the Contractor shall (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to the Contractor with the Contract Documents; and (3) promptly report errors, inconsistencies, or omissions discovered to the Customer.
c. The Contractor shall supervise and direct the Work using the Contractor’s skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work.
7. Labor and Materials
a. Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work.
b. The Contractor warrants to the Customer that: (1) materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Contract Documents. Any material or equipment warranties required by the Contract Documents shall be issued in the name of the Customer, and shall not be transferable to third parties absent Contractor’s written consent.
c. Warranty. Contractor shall extend a five (5) year warranty covering workmanship for improperly installed products. Customer understands that this Warranty does not extend to leaks resulting from ice dams or snow loads.
8. Changes in the Work
a. The Customer, without invalidating the Contract, may order changes in the Work within the general scope of the Contract, consisting of additions, deletions or other revisions, and the Contract Sum and Contract time shall be adjusted accordingly, in a written change order.
b. The Contractor may require minor changes in the Work that are consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract time. Such authorization or order shall be in writing and shall be binding on the Customer and Contractor. The Contractor shall proceed with such minor changes promptly.
c. If concealed or unknown physical conditions are encountered at the site that differ materially from those indicated in the Contract Documents or Customer Provided Information, the Contract Sum and Contract time shall be subject to equitable adjustment, and Contractor shall issue a written change order to memorialize the adjustment.
9. Electronic Notice
a. Written notice under the Contract Documents may be given to the Contractor Representative, John Wright, via email at the following email address:
john@avroofs.com;
b. Written notice under the Contract Documents may be given to the Customer via email at Customer’s email address included on the top of the Proposal.
10. Termination of the Contract
a. Termination by the Contractor for Cause. If the Customer fails to make payment to Contractor for a period of 30 days, the Contractor may, upon seven additional days’ written notice to the Customer, terminate the Contract and recover from the Customer payment for Work executed including reasonable overhead and profit, and costs incurred by reason of such termination.
b. Termination by the Customer for Cause. The Customer may terminate the Contract if the Contractor:
i. repeatedly refuses or fails to supply enough properly skilled workers or proper materials;
ii. fails to make payment to subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Contractor’s subcontractors;
iii. persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or
iv. is otherwise guilty of substantial breach of a provision of the Contract Documents.
c. When any of the above reasons exist, the Customer may without prejudice to any other rights or remedies of the Customer and after giving the Contractor and the Contractor’s surety, if any, seven days’ written notice, terminate employment of the Contractor.
d. If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor shall pay the difference to the Customer. This obligation for payment shall survive termination of the Contract.
e. Termination for Convenience. Either the Customer or the Contractor may, at any time, terminate the Contract for convenience and without cause. In the event either the Customer or the Contractor terminates the contract for convenience, Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination. If Customer terminates for convenience, Contractor shall also be entitled to reasonable overhead and profit on the Work not executed.
11. Waiver of Claims for Consequential Damages
a. Under no circumstances shall Contractor be liable to Customer for consequential or noneconomic damages resulting from a claim arising in contract, tort, equity or otherwise. Customer warrants and represents that it specifically waives its claims and damages relating thereto.
b. This mutual waiver is applicable, without limitation, to all consequential damages due to
Contractor’s termination in accordance with Article 10 or any other breaches of this Contract.
12. Time Limits on Claims. The Customer and Contractor shall commence all claims and causes of action against the other and arising out of or related to the Contract in accordance with the requirements of the final dispute resolution method selected in this Contract whether in contract, tort, breach of warranty, or otherwise, not more than five (5) years after the date of Substantial Completion of the Work. The Customer and Contractor intend to limit the time in which an action can be commenced and intend to both waive all claims and causes of action not commenced in accordance with this Article 12.
13. Dispute Resolution
a. Mediation. As a condition precedent to initiating any litigation, the parties shall mediate any claim or dispute which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with their Construction Industry Mediation Procedures in effect on the date of this Contract. Mediation shall be a condition precedent to arbitration as set forth in Article 13. b. A request for mediation shall be made in writing, delivered to the other party to this Contract, and filed with the person or entity administering the mediation. The request may be made concurrently with the binding dispute resolution but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. If an arbitration is stayed pursuant to this Section, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings.
b. Litigation or Arbitration. Any claim, subject to, but not resolved by, mediation shall be governed by the laws of the State of Utah, and at Contractors sole discretion, any claim shall either be subject to litigation in the Third Judicial District Court, Summit County, State of Utah or shall be administered by the American Arbitration Association in accordance with their Construction Industry Arbitration Procedures in effect on the date of this Contract.
14. Interpretation and Severability. In interpreting this Contract, there shall be no presumption or standard of construction in favor of or against either Contractor or Customer. Invalidation of any provision of this Contract shall not affect the enforceability of any other provision of this Contract.
15. No Third-Party Beneficiaries. This Contract is entered into by the parties for the exclusive benefit of the parties and their respective successors, assigns and affiliated persons referred to herein. Except and only to the extent provided by applicable statute, no creditor or other third party shall have any rights under this Agreement.
