Fill and Sign the Excavator Contract for Contractor Maine Form

EXCAVATION, BACKFILL, GRADING, AND HAULING CONTRACT THIS EXCAVATION, BACKFILL, GRADING, AND HAULING 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. (a) Contractor shall maintain continuous responsibility for proper placement of all bench marks, monuments and reference points and leave the trees, landscaping at the project work site reasonably undamaged. (b) Contractor shall ensure access of workmen with concrete trucks to the foundation area by storing the topsoil and stockpile backfill taken from all excavated areas at       . (c) Excavation shall be to undisturbed soil and all material of every description existing in the excavation area to the depth of       . Maximum allowable excavation grade variance will be       inches over each excavated level (if more than one) to allow for rainfall and normal water drainage. (d) Basement excavations will have approximately       inches overdig of the dwelling footing dimensions and establish a       degree bank slope to prevent cave-in and allow for installation of footings, foundation walls, piers, drain tile and gravel. (e) Contractor shall remove all unsuitable earth materials, topsoil and vegetation from excavated areas receiving fill and place       fill gravel in sub-grade concrete floor, patio, driveway, sidewalk, and front stoop areas as indicated on the       to ensure no settlement . (f) Contractor will use only backfill material that is reasonably free from roots, debris, rocks larger than       inches in diameter and; and deposit backfill material in       inch layers against foundation walls in such manner to avoid wall damage and to ensure minimum settlement. (g) Contractor shall rough grade the dwelling project area to       inches below the finished grade elevation. (h) Contractor shall use       to bring the dwelling project area to finished grade elevation that ensures proper water drainage away from the dwelling. - 1 - (i) If any rocks larger than       are discovered during excavation, Contractor shall place such sized rocks in the       . (j) Contractor shall notify       of unusual digging or soil conditions. (k) Interior areas shall be backfilled as instructed by Owner to reduce settling. (l) Owner will be responsible for providing hand labor, bracing, guard rails, fencing and other items necessary for the protection of the workmen and public. (m) Prior to backfilling and grading Owner shall be responsible for removing all construction debris from all excavated and fill areas including but not limited to foundation and concrete flat work forming materials; dewatering, removing old materials, fences and       from the site. 2. WORK SITE: The Project shall be constructed on the property of Owner located at       and more particularly described as       (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. 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       . Contractor shall not be liable for any delay due to circumstances beyond its control including strikes, casualty, acts of God, illness, injury, or general unavailability of materials. 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. INSURANCE: Contractor shall maintain general liability, workers compensation and builder's risk insurance. 6. 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. 7. 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. Any alteration or deviation from the above contractual specifications that results in a revision of the contract price will be executed only upon the parties entering into a written change order. Such Change Orders shall become part of this Contract. Owner agrees to pay any increase in the cost of the Project as a result of a Change Order. In the event the cost of a Change Order is not known at the time a Change Order is executed, the Contractor shall estimate the cost thereof and Owner shall pay the actual cost whether or not it is in excess of the estimated cost. 8. CONTRACT PRICE: - 2 - {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. METHOD OF PAYMENT (any initial down payment will be limited to no more than one-third of the total contract price): ___________________________ 9. 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. If payment is not made when due, Contractor may suspend work on the job until such time as all payments due have been made without breach of the Contract pending payment or resolution of any dispute. Owner agrees to pay a late charge of 1% of all payments that are more than ten (10) days late plus interest at the rate of 1% per month. 10. 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. If the estimated cost of replacing work already accomplished by Contractor exceeds 20 percent of the Contract price, either the Contractor or Owner may terminate this Contract. Upon termination by either party, Contractor shall be excused from further performance under this Contract and Owner shall pay Contractor a percentage of the Contract price in proportion to the amount of work accomplished prior to the destruction or damage. 11. ASSIGNMENT : Neither party may assign this Contract, or payments due under the Contract, without the other party’s written consent. Any such assignment shall be void and of no effect. 12. INTERPRETATION: (a) Interpretation of Documents. The Contract, drawings, and specifications are intended to supplement one another. In the event of a conflict, the specifications shall control the drawings, - 3 - and the Contract shall control both. If work is displayed on the drawings but not called for in the specifications, or if the work is called for in the specifications but not displayed on the drawings, Contractor shall be required to perform the work as though it were called for and displayed in both documents. (b) Entire Agreement. This Contract constitutes the entire agreement of the parties. No other agreements, oral or written, pertaining to the work to be performed under this Contract exists between the parties. This Contract may only be modified only by a written agreement signed by both parties. (c) Governing Law. This Contract shall be interpreted and governed in accordance with the laws of the State of Maine. 13. 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. 14. 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. To the extent required by law, all work shall be performed by individuals duly licensed and authorized by law to perform said work. 15. 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       from the date hereof. All said defects arising after       and defects in material are not warranted by Contractor. Owner agrees to inspect the work with Contractor within       day(s) following completion of each excavation, backfilling and grading and phase and make a written record of any defects. Contractor shall not be responsible for Owners’/Builders' negligence. Contractor agrees to correct immediately, weather permitting, any defects in the excavation, backfilling or grading work discovered to be due to fault of Contractor. Contractor hereby assigns to Owner all warranties on materials as provided by the manufacturer of such materials. In addition to any additional warranties agreed to by the parties, the contractor warrants that the work will be free from faulty materials; constructed according to the standards of the building code applicable for this location; constructed in a skillful manner and fit for habitation or appropriate use. The warranty rights and remedies set forth in the Maine Uniform Commercial Code apply to this contract. 16. DISPUTE RESOLUTION : If a dispute arises concerning the provisions of this contract or the performance by the parties, then the parties agree to settle this dispute by jointly paying for one of the following (check only one) (1) Binding arbitration as regulated by the Maine Uniform Arbitration Act, with the parties agreeing to accept as final the arbitrator’s decision ( ); (2) Nonbinding arbitration, with the parties free to not accept the arbitrator’s decision and to seek satisfaction through other means, including a lawsuit (       ); or (3) Mediation, with the parties agreeing to enter into good faith negotiations through a neutral - 4 - mediator in order to attempt to resolve their differences (       ). 17. ENERGY STANDARDS: Chapter 214 of the Maine Revised Statutes establishes minimum energy efficiency building standards for new residential construction. This building or addition to an existing building will/will not meet or exceed those standards. AGREED: CONTRACTOR: Signature Print Name & Title Date License Number Name and Address of License Holder OWNER: Signature Print Name Date STATUTORY NOTICES Consumers are strongly advised to visit the Attorney General's publicly accessible website to gather current information on how to enforce their rights when constructing or repairing their homes, as well as the Attorney General's publicly accessible website address and telephone number. Attorney General Website: http://maine.gov/ag/ Attorney General Phone Number: 207-626-8800 Where merchandise is sold or contracted to be sold, whether under a single contract or under multiple contracts, to a consumer as a result of or in connection with a salesman's direct contact accomplished by means of and including, but not limited to, a personal visit or a telephone call, upon the consumer other than at the seller's place of business, without the consumer soliciting the initial contact or sale, the consumer may void the contract or sale by giving notice of his intention not to be bound by the contract or sale and returning or making available for return any merchandise delivered pursuant to the terms of this subchapter. By giving written notice of avoidance to the seller by ordinary mail, postage prepaid, within 3 full business days following the day on which the contract or sale was made. The notice shall be sufficient if addressed to the seller at the address given on the contract or agreement. Notice of avoidance shall be effective upon deposit in the United States mail. The notice of avoidance given under this section need not take a particular form and is sufficient if it expresses the intention of the consumer not to be bound by the sale. If the contract requires the seller to affix merchandise permanently to real estate or its - 5 - appurtenances, then the seller may not begin performance as long as the consumer has the right to cancel. - 6 - ADDENDUM Maine Attorney General Home Construction Warning If you are thinking about building a new home or repairing your existing home, here are some things you should know. Contractors Are Not Licensed - Buyer Beware! While there are a great many competent, ethical home contractors in Maine, it is up to you, the consumer, to find one. Home contractors are not licensed or regulated by the State of Maine. The old saying "Buyer Beware" applies. You should also keep in mind that the lack of state licensing allows the worst contractors to compete for your business alongside the best. The Attorney General's Consumer Mediation Program ranks home contractors among the top three most complained about businesses every year. Although home construction contractors are not licensed, some building trades are licensed. Architects, engineers, plumbers, electricians, oil burner technicians, manufacturers, dealers and installers of mobile and modular homes are licensed in Maine. For more information on these licensed trades, go to www.maine.gov/pfr/pfrhome.htm. When hiring a contractor, we recommend that you: * Seek referrals and keep good notes. The best source of references may be: - friends - co-workers - independent trade contractors - engineers - family - building material suppliers - neighbors - architects - home inspectors - local lenders - banks - contractor's existing customers * When meeting with a builder, be sure to ask for: - Number of years in business - Permanent business location - Proof of general liability insurance - Professional affiliations - Educational designations - List of last 5 customers - Proof of workers' compensation insurance for employees and liability insurance We strongly recommend that you ask any contractor you are considering hiring for several references and that you follow up on them. Building Codes - 7 - While some towns and cities have adopted building codes and enforced them, others have not. We recommend that you talk to your town's code officials before you begin construction. Written Contracts Are Required For all home construction and home improvement projects over $3,000, Maine law requires a written contract with a specific provision that prohibits payment up front of more than one third of the contract price. When a contractor asks you for any money up front, make sure that the money is being used to purchase materials for your project. Ask for receipts and for a lien waiver from subcontractors. A model home construction contract that meets State law can be found in Chapter 18 of the Maine Attorney General's Consumer Law Guide. Be Careful with Construction Loans If a lender is financing your construction project, make sure that you know your lender and that you understand how your loan proceeds will be disbursed and how subcontractors will be paid. Home Contractor Complaints Received by the Attorney General You can find out if a particular contractor has been the subject of a consumer complaint that the Attorney General attempted to mediate by contacting the Attorney General's Consumer Protection Division at 1- 800-436-2131 or at consumer.mediation@maine.gov. Keep in mind that just because the Attorney General has accepted a complaint for mediation does not necessarily mean the consumer was right and the contractor was wrong. Home Contractors the State Has Sued In the recent past the State has successfully sued the following home contractors for poor workmanship or failure to complete jobs. The files below require the free Adobe Reader.: * State of Maine v. Maine Coast Log Homes, Timber Pine Construction, and Mark A. Holmes * State of Maine v. CBS Enterprises (PDF) (Kimberly Mark Smith and David J. Blais), * Default Judgment in CBS Enterprises (PDF), * State of Maine v. Frederic Weinschenk (PDF) d/b/a Ric Weinschenk Builders, Inc., * State of Maine v. Stephen Lunt (PDF) d/b/a Lakeview Builders, Inc., * State of Maine v. Bob Burns (PDF) d/b/a Better Homes, * State of Maine v. Albert H. Giandrea (PDF) d/b/a AG's Home Quality Improvements, Inc., * State of Maine v. Al Verdone (PDF), * State of Maine v. Mikal W. Tuttle (PDF), d/b/a MT Construction, DMI Industries, Inc., and MT Construction, Inc. * State of Maine v. Jeffrey C. Scott, d/b/a Molunkus Stream Construction (PDF) The Androscoggin County District Attorney has obtained theft convictions against home contractors Harold Soper (State of Maine v. Harold Soper (PDF)) and Mikel Tuttle (State of Maine v. Mikel W. Tuttle (PDF)). Even when our law suits have been successful, we have been unable to collect a significant portion of the judgments because the builders are bankrupt, judgment proof, or have left the state. We strongly recommend that you research a contractor's record before you begin any construction project. Your Home Construction Rights - 8 - Chapter 17 of the Maine Attorney General's Consumer Law Guide explains your rights when constructing or repairing your home. Chapter 18 of the Consumer Law Guide is a model home construction contract that meets the statutory requirements for any home construction contract over $3,000. - 9 - *Optional notice required only for home solicitation sales: BUYER'S RIGHT TO CANCEL Date of signed transaction: _________________________________ If this agreement was solicited at your residence and you do not want the goods or services, you may cancel this agreement by mailing a notice to the seller. The notice must say that you do not want the goods or services and must be mailed before midnight of _________________________________ (date) when cancellation right lapses. The notice must be mailed to: _________________________________ _________________________________ _________________________________ (Insert name and mailing address of seller) If you cancel by this date, the seller may not keep any of your cash down payment. If this agreement requires the seller to affix goods to real estate, then the seller may not begin the work until _________________________________ (date) when cancellation right lapses. - 10 -