Fill and Sign the Between Contractor Owner Agreement Form

Agreement Between Contractor and School District Owner to Remodel School Agreement made on the ___ day of __________, 20___, between _______________ of ________________________________ (street address, city, county, state, zip code) , referred to herein as Contractor, and _____________ School District with its principal office located at _________________________________________ (street address, city, county, state, zip code) , referred to herein as School District. Whereas, Contractor is in the business of building and remodeling buildings, including, but not limited to, carpentry, plumbing, electrical, heating, doors, windows, cabinets and painting, and the necessary demolition of existing fixtures and structures in order to accomplish any remodeling; and Whereas, School District desires to engage Contractor to do remodeling work on _____________________ (name of school) located at ________________________________ (street address, city, county, state, zip code) , hereinafter referred to as School; Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I. Description of Work to be Performed Contractor will furnish all labor and materials for the remodeling of the School in accordance with the attached _________________ (plans or blueprints) and the following specifications: (E.g., specifications not clearly reflected in the plans or blueprints). II. Time for Completion Contractor agrees that the work under this Agreement shall be substantially completed within ________working days after the effective date of this Agreement. III. Amount of Compensation and Payment Schedule School District agrees to pay Contractor for its performance of this Agreement, the sum of $_____________ (the fixed compensation) and the actual cost of material furnished and labor performed plus _____% (cost plus compensation) for profit, use of tools, equipment, and general supervision, and any other overhead and fixed charges, and to make payments on account of the contract price as follows: A. On or about the _____day of each month during construction, a payment equivalent to ______% of the fixed compensation and ____% of the cost plus compensation . B. On final completion of the work and settlement of all claims, the remainder of the fixed compensation and cost plus compensation . IV. Cost of Work -- Items Included The cost of the work shall consist of the entire actual cost to Contractor of accomplishing the work and shall include the following: A. Salaries or wages of all labor, including services of superintendent, assistant superintendents, field engineers, job supervisors, clerks, security personnel, truck drivers, mechanics, laborers, and all others necessary for the proper conduct of the work and for the time employed on the work, together with any social security and unemployment insurance taxes in connection with such labor. B. Disbursements made and obligations incurred for, or in connection with, the furnishing, delivery, and installation of all materials, structural accessories, machinery, equipment, and other items required to be furnished and done under and pursuant to this agreement; also, for and in connection with the construction equipment and maintenance of temporary offices or other work structures for contractor and owner, at the site of the work and elsewhere as required; for providing storage facilities away from the site, if required; and for or in connection with all insurance, bonds, fees, royalties, and permits. C. Disbursements made and obligations incurred pursuant to subcontracts made and entered into under and pursuant to this agreement, less all countercharges collected from subcontractors. D. All loading and unloading, demurrage, express, freight, and delivery charges, including those on construction equipment and tools to and from the work; cost of assembling, directing, moving, and dismantling construction equipment; cost of fuel, power, light, and water used during construction; custom duties on materials, drawings, or Contractor's equipment; cost of all telephone, telecopy, and similar charges incurred by contractor at site of the work in connection with the work; cost of progress photographs and negatives; cost of temporary fences, guardrails, or scaffolds; and rental charges of necessary machinery and equipment, whether such machinery and equipment is owned by Contractor or shall be rented from others, for such time as it is in actual use on the work. The rate of such rentals including freight and delivery costs and all operating expenses, except labor, shall be approved by owner before commitments are made and shall in no event be higher than the standard of rates paid in the locality for similar equipment. E. Disbursements for materials or supplies furnished from Contractor's stock which shall be charged to the work at a fair market price as determined by Contractor and approved by School District. F. Such travel and living expenses of Contractor's employees as may be necessary and specifically approved by School District . V. Billing on Cost-Plus Work Cost-plus billings shall be supported with proper bills and invoices for labor, materials, subcontracts, and other items. Should Contractor claim that any instructions, by drawings or otherwise, involve extra work under this Agreement, he or she shall promptly give written notice of such claim to School District before proceeding to follow such instructions, and no such claim shall be valid unless so made. VI. Agreement between Contractor and School District as to Extra Work If School District requires extra work not covered in the original contract, it shall promptly give written notice to the Contractor. The cost of such extra work must be agreed upon in writing before such extra work is commenced. VII. Final Payment on Presentation of Affidavit of Payment of Invoices On the completion of the remodeling of the School , in accordance with the plans and specifications, Contractor shall furnish to School District evidence in the form of a Contractor's affidavit that all invoices both for labor and materials have been paid in full, and on the presentation of such affidavit, School District shall pay to Contractor the balance due under this Agreement. School District by making payment waives all claims except those arising out of: A. Faulty work appearing after substantial completion has been granted; B. Work that does not comply with the contract documents; C. Outstanding claims of lien; or D. Failure of Contractor to comply with any special guarantees required by the contract documents. Contractor, by accepting final payment, waives all claims except those that he has previously made in writing, and which remain unsettled at the time of acceptance. VIII. Subcontractors A. Contractor agrees to furnish School District , prior to the execution of this Agreement, with a list of names of subcontractors to whom he proposes to award the principal portions of the work to be subcontracted by him. B. A Subcontractor, for the purposes of this agreement, shall be a person with whom Contractor has a direct contract for work at the project site. C. Contractor agrees not to employ a subcontractor to whose employment School District reasonably objects, nor shall Contractor be required to hire a subcontractor to whose employment he reasonably objects. D. All contracts between Contractor and subcontractors shall conform to the provisions of the contract documents, and shall incorporate in them the relevant provisions of this agreement. IV. Contents of Agreement Contractor and School District agree that the specifications and the drawings, along with this Agreement, form the entire Agreement between Contractor and School District , and that they are as fully a part of the entire Agreement as if they were attached to or repeated in this instrument. V. Responsibilities of Contractor Contractor's duties and rights in connection with the above-described project are as follows: A. Responsibility for and Supervision of Construction. Contractor shall be solely responsible for all construction under this contract, including the techniques, sequences, procedures, and means, and for coordination of all work. Contractor shall supervise and direct the work to the best of his or her ability, and give it all attention necessary for such proper supervision and direction. B. Discipline and Employment. Contractor shall maintain at all times strict discipline among his or her employees, and Contractor agrees not to employ for work on the project any person unfit or without sufficient skill to perform the job for which he or she was employed. C. Furnishing of Labor, Materials, etc. Contractor shall provide and pay for all labor, materials, and equipment, including tools, construction equipment, and machinery, utilities, including water, transportation, and all other facilities and services necessary for the proper completion of work on the project in accordance with the contract documents. D. Payment of Taxes; Procurement of Licenses and Permits. Contractor shall pay all taxes required by law in connection with work on the project in accordance with this agreement including sales, use, and similar taxes, and shall secure all licenses and permits necessary for proper completion of the work, paying the fees for such licenses and permits. E. Compliance with Construction Laws and Regulations. Contractor shall comply with all laws and ordinances, and the rules, regulations, or orders of all public authorities relating to the performance of the work under and pursuant to this agreement. If any of the contract documents are at variance with any such laws, ordinances, rules, regulations, or orders, he shall notify School District promptly on discovery of such variance. F. Responsibility for Negligence of Employees and Subcontractors. Contractor assumes full responsibility for acts, negligence, or omissions of all his employees on the project, for those of his subcontractors and their employees, and for those of all other persons doing work under a contract with him. G. Warranty of Fitness of Equipment and Materials. Contractor represents and warrants to owner and to School District that all equipment and materials used in the work, and made a part of the structures on such work, or placed permanently in connection with such work, will be new unless otherwise specified in the contract documents, of good quality, free of defects, and in conformity with the contract documents. It is agreed between the parties to this agreement that all equipment and materials not so in conformity will be considered defective. H. Clean-up. Contractor agrees to keep the work premises and adjoining ways free of waste material and rubbish caused by his work or that of his subcontractors. Contractor further agrees to remove all such waste material and rubbish on termination of the project, together with all his tools, equipment, machinery, and surplus materials. Contractor agrees, on terminating his work at the site, to conduct general clean-up operations, including the cleaning of all glass surfaces, paved streets and walks, steps, and interior floors and walls. I. Safety Precautions and Programs. Contractor has the duty of providing for and overseeing all safety orders, precautions, and programs necessary to the reasonable safety of the work. In this connection, contractor shall take reasonable precautions for the safety of all employees and other persons whom the work might affect, all work and materials incorporated in the project, and all property and improvements on the construction site and adjacent to the construction site, complying with all applicable laws, ordinances, rules, regulations, and orders. J. Contractor's Liability Insurance. Contractor agrees to keep in force (at School District’s expense as provided in Paragraph IV-B above) during the entire period of construction on the project such liability insurance as will protect him from claims, under workers' compensation and other employee benefit laws, for bodily injury and death, and for property damage, that may arise out of work under this Agreement, whether directly or indirectly by contractor, or directly or indirectly by a subcontractor. The minimum liability limits of such insurance shall not be less than the limits as are normal under this type of Agreement or by law for that type of damage claim. Such insurance shall include contractual liability insurance applicable to Contractor's obligations under this agreement. Proof of such insurance shall be filed by Contractor with owner within a reasonable time after execution of this Agreement. V. Responsibilities of Contractor A. School District’s agrees to maintain in force its own liability insurance during the construction on this project, and reserves the right to purchase such additional insurance as in its opinion is necessary to protect it against claims arising out of the Contractor's operation, without diminishing Contractor's obligation to carry the insurance specified in this agreement on Contractor's part to be carried. B. Property Damage Insurance on Work Site. School District agrees to maintain at his expense, during construction of the project, property damage insurance on the work at the site to its full insurable value, including interests of School District , Contractor, and subcontractors, against fire, vandalism, and other perils ordinarily included in extended coverage. Losses under such insurance will be adjusted with and made payable to owner as trustee for the parties insured as their interests appear. School District shall file a copy of all such policies with Contractor within a reasonable time after construction begins under and pursuant to this Agreement. VI. Waiver of Work Site Property Damage Claims to Extent of Insurance Coverage. School District and Contractor waive all claims against each other for fire damage or damages from other perils covered by insurance provided above. Contractor agrees to obtain waivers of such claims by all subcontractors. VII. Correcting Work When it appears to Contractor during the course of construction that any work does not conform to the provisions of the contract documents, Contractor shall make necessary corrections so that such work will so conform, and in addition will correct any defects caused by faulty materials, equipment, or quality of performance in work supervised by him or by a subcontractor, appearing within _____ days from the date of issuance of a certificate of substantial completion, or within such longer period as may be prescribed by law or as may be provided for by applicable special guaranties in the contract documents. VIII. Loss by Unforeseeable Event -- School District Solely Liable If before completion the work should be wholly or partially destroyed by fire, defective soil, earthquake, or act of God that contractor could not have reasonably foreseen and provided against, then the loss occasioned by such event or happening shall be sustained solely by School District . IX. Termination by Either Party Either party to this contract may terminate it by giving the other party _____days' written notice of the intention to so terminate. If this contract is terminated under this clause by either party, School District shall pay Contractor for all materials actually used in the construction and for all labor, plus ____% of the cost of the materials actually used in the construction, and _____ % of the labor up until the time of the termination of the contract and shall not be obligated to Contractor for any other payments. Contractor, in case the contract is terminated, shall likewise be under no other obligation to School District . X. Governing Law This agreement shall be governed by, construed, and enforced in accordance with the laws of the State of __________. XI. Attorney’s Fees If any action is filed in relation to this agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney' fees. XII. Mandatory Arbitration Notwithstanding the foregoing, and anything herein to the contrary notwithstanding, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. XIII. Entire Agreement This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. XIV. Modification Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. XV. Notices Any notice provided for or concerning this Agreement shall be in writing and be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. XVI. Assignment of Rights The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. XVII. Title to Material Title to the material to be furnished by Contractor shall be and remain in Contractor until all sums of money called for are fully paid. In case of default in payment of any of the installments provided for in this agreement, Contractor is authorized to enter the School and the premises on which the School is located and take possession of and remove material at any time after the default. XVIII. Cancellation at Option of Parties upon Destruction of School This Agreement may be cancelled, without previous notice, at the option of either party if is destroyed by fire or other catastrophe or is so substantially damaged that it is impracticable to continue use of School . Notwithstanding the foregoing, such cancellation by School District may only be made if all payments described in Paragraph III above are current. XIX. Contractor not an Insurer It is agreed by and between the parties that Contractor is not an insurer; that the payments specified in this Agreement are based solely on the value of the materials and other construction costs, including labor, and that it is impracticable and extremely difficult to fix the actual damages, if any, that may proximately result from a failure of Contractor to adequately perform the remodeling. Therefore, the parties hereby agree that in the case of Contractor’s failure to adequately perform the remodeling and a resulting loss to School District , Contractor’s liability under this Agreement shall be limited to correction or replacement costs and in no event shall Contractor be liable for special, incidental or consequential damages regardless of the claim or the form of the action or suit, whether in contract, negligence or tort, and regardless of whether any such resulting loss results from any aspect of the remodeling, including, but not limited to demolition, installation, and/or clean-up. XX. Miscellaneous Provisions A. The provisions of this Agreement shall be binding upon and inure to the benefit of the heirs, personal representatives, successors and assigns of the parties. B. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. C. Neither party shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, to other events beyond the control of the other. D. Contractor intends to render its services under this Agreement in accordance with generally accepted professional practices for the intended use of the School and makes no warranty either express or implied. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. ___________ SCHOOL DISTRICT By _____________________________ _________________________ (Name and Office) CONTRACTOR