Fill and Sign the Cost Plus Contract 497314109 Form

COST PLUS FIXED FEE CONSTRUCTION CONTRACT THIS CONTRACT IS ENTERED INTO THIS THE       DAY OF       ,       by and between       (hereafter "Contractor") and       hereafter "Owner") (If husband and wife are named as Owner any one of them may execute any documents contemplated by the terms hereof including Change Orders and by the signature of one of them they each shall be bound thereby to the same extent as if both signatures were made.) For valuable consideration the parties do hereby agree as follows: 1. SCOPE OF WORK: Contractor shall provide all labor, materials, construction equipment, machinery and other incidentals necessary to construct for Owner the residence as described by the plans and specifcations of       , architect (hereafter "the Project") as selected by Owners and as more particularly described in the Description of Materials attached as Exhibit "A" and the Additional Requirements & Clarifcations attached as Exhibit "B". Copies of said plans and specifcations have been executed by Contractor and Owner on the date hereof and are hereby made a part of this contract. All work on the Project is to be completed by the Contractor at his expense in a good and workmanlike manner utilizing new materials of good quality and qualifed and experienced subcontractors. The Contractor has also provided Owner with a estimate of material and labor costs associated with the Project for informational purposes only. Owner acknowledges that said costs are estimates only and the actual cost of the project may vary from the estimates. OWNER HEREBY ACKNOWLEDGES AND AGREES THAT HE WILL PAY THE CONTRACTOR THE ACTUAL COST OF THE PROJECT PLUS THE FIXED FEE AS HEREIN PROVIDED REGARDLESS OF WHETHER THE ACTUAL COST EXCEEDS THE ESTIMATE AND THAT ALL COSTS OF THE PROJECT PAID BY CONTRACTOR ARE TO BE INCLUDED IN THE COST OF THE PROJECT. Contractor shall inform Owners of changes for the estimated Cost in a prompt manner. 2. WORK SITE: The Project shall be constructed on the property of Owner located at       , Mississippi (hereafter "the Work Site"). Owner hereby authorizes Contractor to commence and complete the usual and customary excavation and grading on the Work Site as may be required in the judgment of the Contractor to complete the Project. 3. 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 an Cost of the Project. 4. SOIL CONDITIONS: Contractor shall assist Owner in the evaluation of the soils at the Work Site. However, Contractor shall have no responsibility for the condition of the soils at the Work Site. Any excavation, flling or other work required by the Owner other than the usual and customary excavation and grading shall be an additional Cost of the Project. Contractor shall not be responsible for any damages sufered by Owner as a result of the soil conditions at the Work Site. 5. INSURANCE: Contractor shall maintain general liability, and workers compensation. Owners shall maintain builder's risk insurance relating to the Project and pay the cost thereof. 6. SURVEY AND TITLE: Prior to commencement of construction Owner shall provide Contractor with a boundary survey performed by a licensed surveyor, a title opinion by a licensed attorney and a copy of all protective covenants which efect the Work Site. 7. CHANGES TO SCOPE OF WORK: Owner may make changes to the scope of the work including changes to the plans and specifcations from time to time during the construction of the Project. However, any such change or modifcation shall only be made by written "Change Order", the form of which is attached hereto as Exhibit "1". Owner agrees to pay any increase in the Cost of the Project as a result of all Change Orders. In the event the cost of the Change Order is not known at the time a Change Order is executed the Contractor shall estimate the cost thereof and Owner agrees to pay the actual cost whether or not it is in excess of the estimated cost. 8. DEPOSIT : Owner has deposited with Contractor the sum of $       as earnest money, which will be held in a non-interest bearing account. Should Owner require approval for a specifed loan for any part of the purchase price, and after applying therefor in good faith, be unable to secure such loan, then the earnest money shall be returned in full to Owner. However, should Owner fail or refuse within fve working days of this contract to apply for such loan, or refuse to diligently pursue loan approval, or fail or refuse within seven days after the issuance of an unconditional loan commitment, to execute all documents necessary for said loan, Owner shall be considered in default under the terms of this contract and Contractor shall have such recourse as is delineated in paragraph 13 hereof. 9. PROJECT COST AND CONTRACTORS FIXED FEE: Owner agrees to pay contractor the sum of $       (hereafter, "Fixed Fee") for performing the services set forth in the scope of the work PLUS the actual cost of all labor, materials and other project costs (hereinabove and hereafter "the Cost of the Project). The Cost of the Project shall be paid by Owner to Contractor in monthly disbursements. The Fixed Fee shall be paid by Owner to Contractor in four installments at the following stages of construction: (a) $       earnest money; (b) $       when the foundation is complete and before any framing begins; (c) $       when the project is "blacked in" and all windows and exterior doors are hung; and (d) $       upon completion of the project and BEFORE Owner moves in. Contractor shall submit to Owner a written request for payment and/or applicable invoices fve (5) days prior to the above installments and/or disbursements when due. 10. CLEAN-UP: Upon completion of the work, Contractor shall remove all rubbish and surplus materials from the work site and leave the structure and grounds ready for use and occupancy by Owner. 11. CONSTRUCTION TERM: Subject to any delay caused by owners, construction shall begin within seven days after owner notifes contractor to proceed. Provided owner makes timely payments as required under this agreement, construction will be completed within six months after it is commenced, barring delays caused by strikes, lockouts, work stoppages, acts of vandalism, unusually bad weather, war, governmental restrictions, unavailability of materials from regular sources, fre or other events over which contractor has no control and the time of completion shall be extended by any periods of delay caused by the above enumerated contingencies. 12. WAIVER OF LIEN: Contractor shall not allow any liens or other encumbrances to be placed against the Project or Owners' property and agrees to pay or otherwise compensate all sub- contractors, workers, materialmen, suppliers, tradesmen, laborers or other persons involved in the construction of the Project. In no event shall such payments be made more than fve (5) days after Contractor receives reimbursement for such costs from Owners. Simultaneous with receiving fnal payment hereunder, Contractor shall provide Owners with a waiver of lien releasing any and all lien rights, if any, which Contractor has in connection with the Project and an afdavit certifying that all persons or entities providing services or materials in connection with the Project have been paid in full. In addition, Contractor agrees to provide, either prior or subsequent to completion of the Project, such additional documentation which Owners or any lender may reasonably require or request from Contractor regarding liens and the payment of others. 13. BREACH OF CONTRACT: Specifc performance is the essence of this contract, except as otherwise specifcally provided for herein and as further delineated below: (a) in the event of breach of this contract by Owner, Contractor at his option may either: (1) accept the earnest money deposit as liquidated damages and this contract shall then be null and void, or (2) enter suit in any court of competent jurisdiction for damages, giving credit on said damages for the said earnest money deposit, or (3) enter suit in any court of competent jurisdiction for specifc performance. (b) in the event of breach of contract by Contractor, Owner at his option may either: (1) accept the return of the earnest money deposit and cancel the contract, or (2) obtain another Contractor to complete the contract, set of the costs of such new contractor against the amount due Contractor, and enter suit for damages in any court of competent jurisdiction, or (3) enter suit in any court of competent jurisdiction for specifc performance. (c) If it becomes necessary to insure the performance of the conditions of this contract for either party to initiate litigation, then the losing party agrees to pay reasonable attorney's fees and court costs in connection therewith. 14. TERMITE CONTROL: Contractor shall treat subject property against termite or other wood destroying insect infestation per Owner's request. Contractor shall furnish Owner, prior to or at Closing, a certifcation from a licensed reputable termite control company. 15. ARBITRATION: All claims and disputes relating to this contract shall be resolved by arbitration and not court proceedings, in accordance with the Arbitration Rules of the American Arbitration Association for the construction industry. The parties agree that the determinations made by the Arbitrator shall be fnal and binding on all parties to the same efect as a fnal judgment in court proceedings. Either party may initiate Arbitration by delivering to the other party a written demand for Arbitration with a copy to the American Arbitration Association. Likewise, all claims arising as a result of the arbitration proceedings including without limitation claims for delays, construction interest, taxes, lease fees and insurance shall also be resolved in said arbitration proceedings. 16. WARRANTY: Contractor does hereby warrant that the Project will be constructed in a prudent and workmanlike manner and that the Project will be free from defects in workmanship for a period of six (6) years from the date of completion of the Project. In addition, Contractor hereby assigns to Owner any and all warranties on materials and appliances as provided by the manufacturer thereof. Furthermore, Contractor agrees to promptly re-execute, at its sale cost and expense, any warranty work as required by the terms hereof. 17. OWNER FINANCING: Owner is responsible for all costs associated with the construction fnancing and closing costs. 18. ENTIRE AGREEMENT: This contract contains the entire agreement between the parties and all prior agreements, representations or understandings are which are not specifcally incorporated herein are not binding on the parties. Except as provided for herein no change, modifcation or amendment to this contract shall be binding upon the parties unless in writing and executed by all parties in substantially the same form as this contract. 19. BINDING EFFECT: Each party acknowledges that they have read this contract and have had opportunity to consult with their attorney regarding the terms hereof. This contract shall be binding upon and shall inure to the beneft of the heirs, successors and assigns of the parties hereto. Should any provision hereof be determined to be unenforceable or invalid the remaining provisions hereof shall nevertheless survive and be binding on the parties. WITNESS THE SIGNATURES OF THE PARTIES HERETO ON THE DATE FIRST WRITTEN ABOVE. CONTRACTOR: ________________________________ OWNER: ____________________________________ ____________________________________