Texas Cost Plus or Fixed Fee Construction Contract

CONSTRUCTION CONTRACT

THIS CONSTRUCTION CONTRACT (“Contract”), effective as of the date of the last party to sign below, is between , having an address at ("Contractor") and , having an address at ("Owner").

For valuable consideration the parties hereby agree as follows:

1. SCOPE OF WORK: Contractor shall provide all labor and materials, and perform all work necessary for the completion of the residence, structure, or improvements as described in the drawings and specifications signed by both Owner and Contractor (“Project”) and more particularly described as

Such drawings and specifications are hereby made a part of this Contract. Drawings and specifications shall contain a scale drawing showing the shape, size, and dimensions of the construction and equipment together with a description of the work to be done, materials to be used, and the equipment to be used or installed.

2. WORK SITE: The Project shall be constructed on the property of Owner located at

(“Property”) and more particularly described as

(hereafter "the Work Site").

3. TIME OF COMPLETION: Contractor shall commence the work to be performed under this Contract on or before and shall substantially complete the work on or before .

4. PERMITS: Contractor shall apply for and obtain such permits and regulatory approvals as may be required by the local municipal/county government, the cost thereof shall be included as part of the Project price.

5. SOIL CONDITIONS: Contractor shall have no responsibility for the condition of the soils at the Work Site. Any excavation, filling or other work required by the Owner other than the usual and customary excavation and grading shall be agreed to in a Change Order for an amount in addition to the Contract Price. Contractor shall not be responsible for any damages suffered by Owner as a result of the soil conditions at the Work Site.

6. INSURANCE: Contractor shall maintain general liability, workers compensation and builder's risk insurance.

7. SURVEY AND TITLE: If the Project is near the Owner’s property boundary, Owner will point out property lines to the Contractor. If the Owner or Contractor has any doubt about the location of the property lines, Owner shall provide Contractor with boundary stakes through a licensed surveyor. In addition, Owner shall provide Contractor documentation that Owner has title to the Work Site and shall provide Contractor copies of any covenants, conditions, or restrictions that affect the Work Site.

8. CHANGES TO SCOPE OF WORK: Owner may make changes to the scope of the work, including changes to the drawings and specifications, from time to time during the construction of the Project. However, any such change or modification shall only be made by written "Change Order" signed by both parties.

9. CONTRACT PRICE:

{COST PLUS}

Owner agrees to pay Contractor the actual cost to Contractor of materials plus the sum of $ for performing the services set forth in the scope of the work. Contractor shall be paid as follows:

OR

{FIXED FEE}

Owner agrees to pay Contractor the sum of $ for performing the services set forth in the scope of the work. Contractor shall be paid as follows:

Contractor shall furnish Owner appropriate releases or waivers of lien for all work performed or materials provided at the time the next periodic payment shall be due.

During the progress of work under this Contract and for 30 days after the work is completed, the owner shall retain: (i) 10% of the Contract Price; or (ii) 10% of the value of the work, measured by the proportion that the work done bears to the work to be done, using the contract price or, if there is no contract price, using the reasonable vale of the completed work.

At the time of final payment, Contractor shall provide Owner with a Final bills-Paid Affidavit. Owner shall pay Contractor the above mentioned retainage within 40 days after the Project is completed and Owner has received from Contractor the Final Bills Paid Affidavit.

10. LATE PAYMENT/DEFAULT: A failure to make payment for a period in excess of ten (10) days from the due date shall be deemed a material breach of this Contract.

11. DESTRUCTION AND DAMAGE: If the Project is destroyed or damaged for any reason, except where such destruction or damage was caused by the sole negligence of the Contractor or its subcontractors, Owner shall pay Contractor for any additional work done by Contractor in rebuilding or restoring the Project to its condition prior to such destruction or damage.

12. ASSIGNMENT: Neither party may assign this Contract, or payments due under the Contract, without the other party’s written consent.

13. INTERPRETATION:

(a) Interpretation of Documents. The Contract, drawings, and specifications are intended to supplement one another.

(b) Entire Agreement. This Contract constitutes the entire agreement of the parties.

(c) Governing Law. This Contract shall be interpreted and governed in accordance with the laws of the State of Texas.

14. ATTORNEYS’ FEES AND COSTS: If any party to this Contract brings a cause of action against the other party arising from or relating to this Contract, the prevailing party in such proceeding shall be entitled to recover reasonable attorney fees and court costs.

15. PERFORMANCE:

(a) Contractor may, at its discretion, engage licensed subcontractors to perform work pursuant this Contract provided Contractor shall remain fully responsible for the proper completion of the Project.

(b) All work shall be completed in a workman-like manner and in compliance with all building codes and applicable laws.

(c) Contractor agrees to remove all debris and leave the premises in broom clean condition.

16. WARRANTY: Contractor's warranty shall be limited to defects in workmanship within the scope of work performed by Contractor and which arise and become known within one (1) year from the date hereof.

17. NO WORK COMMENCED: Contractor and Owner affirm that:

(a) no work of any kind has commenced or been performed on the Property;

(b) no labor or materials have been ordered or furnished to or on behalf of Owner for use in such construction;

(c) no contracts or agreements for the furnishing of labor, materials, or services for use in the construction or improvements on the Property have been executed;

18. RECEIPT OF DISCLOSURE STATEMENT: Before execution of this Contract, Owner received from Contractor the disclosure statement required by Section 53.255(b) of the Texas Property Code.

AGREED:

IMPORTANT NOTICE: You and your contractor are responsible for meeting the terms and conditions of this contract.

This contract is subject to Chapter 27 of the Texas Property Code. The provisions of that chapter may affect your right to recover damages arising from a construction defect.

KNOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE LAW.

GET IT IN WRITING. Make sure that you have a written agreement with your contractor that includes the description of work, completion time, cost, and payment procedures.

READ BEFORE YOU SIGN. Do not sign any document before you have read and understood it.

GET A LIST OF SUBCONTRACTORS AND SUPPLIERS. Before construction commences, your contractor is required to provide you with a list of the subcontractors and suppliers the contractor intends to use on your project.

MONITOR THE WORK. Inspect the work yourself or have your own independent inspector review the work in progress.

MONITOR PAYMENTS. Review disbursement statements and make sure that the money is being properly disbursed.

CLAIMS BY SUBCONTRACTORS AND SUPPLIERS. Under Texas law, if a subcontractor or supplier who furnishes labor or materials is not paid, you may become liable and your property may be subject to a lien.

OBTAIN A LIEN RELEASE AND A BILLS-PAID AFFIDAVIT. Require the contractor to furnish an affidavit stating that all bills have been paid.

OBTAIN TITLE INSURANCE PROTECTION. You may be able to obtain a title insurance policy to insure that the title to your property and the existing improvements on your property are free from liens claimed by subcontractors and suppliers.

LIST OF SUBCONTRACTORS AND SUPPLIERS

SUBCONTRACTORS:

SUPPLIERS:

WAIVER OF THE LIST OF SUBCONTRACTORS AND SUPPLIERS

AN OWNER IS NOT REQUIRED TO WAIVE THE RIGHT GRANTED BY SECTION 53.256, PROPERTY CODE, TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS.

BY SIGNING THIS DOCUMENT, I AGREE TO WAIVE MY RIGHT TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS.

I UNDERSTAND AND ACKNOWLEDGE THAT, AFTER SIGNING THIS DOCUMENT, THIS WAIVER MAY NOT BE CANCELED AT A LATER DATE.

I HAVE VOLUNTARILY CONSENTED TO THIS WAIVER.

AGREED:

PAYMENT REQUEST AND DISBURSEMENT STATEMENT

PAYMENT REQUEST

DISBURSEMENT STATEMENT

LIST OF ALL SUBCONTRACTORS AND SUPPLIERS

SUBCONTRACTORS AND SUPPLIERS TO BE PAID FROM THIS PAYMENT ARE INDICATED BELOW

SUBCONTRACTORS:

SUPPLIERS: