Complaint Against Builder

Basic Building and Construction Contract between Owner and Contractor

Agreement made on the , between of , referred to herein as Owner, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Contractor.

I. Description of Work

Contractor, a corporation duly licensed as a Contractor in the state of , shall perform the following described work, in accordance with the Contract plans and specifications (the Contract Documents), at the following address:

II. Contract Price

A. Owner agrees to pay Contractor, for the work described, the total price of $.

B. Payment of this amount is subject to additions or deductions in accordance with the provisions of this Contract and of the other Documents to which this Contract is subject.

C. Progress payment on the total Contract price is to be made in installments as follows:

1. Installment of $ on or before

2. Installment of $ on or before

3. Installment of $ on or before

4. Final Payment of $ on or before

III. Progress Payments

A. Owner shall make progress payments on account of the Contract price to Contractor, on the basis of applications for payment submitted to by Contractor as the work progresses, and on the certificate for the same, in accordance with .

B. Progress payments may be withheld if:

1. Work is found defective and not remedied;

2. Contractor does not make prompt and proper payments to subcontractors;

3. Contractor does not make prompt and proper payments for labor, materials, or equipment furnished him or her;

4. Another contractor is damaged by an act for which Contractor is responsible;

5. Claims or liens are filed on the job; or

6. In the opinion of , Contractor's work is not progressing satisfactorily.

IV. Final Payment

A. Owner shall make final payment to Contractor within days after the work is completed, if the Contract is at that time fully performed, and subject to the condition that final payment shall not be due until Contractor has delivered to Owner a complete release of all liens arising out of the Contract, or receipts in full covering all labor, materials, and equipment for which a lien could be filed, or in the alternative a bond satisfactory to Owner indemnifying him or her against any and all such liens.

B. Owner by making payment waives all claims except those arising out of:

1. Faulty work appearing after substantial completion has been granted;

2. Work that does not comply with the Contract Documents;

3. Outstanding claims of lien; or

4. Failure of Contractor to comply with any special guarantees required by the Contract Documents.

C. 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.

V. Starting and Completion Dates

Construction under this Contract shall begin on , and be completed by .

VI. Contract Documents

A. The Contract Documents on which the Agreement between Owner, and Contractor is based, that contain the plans and specifications in accordance with which the work is to be done, and that provide for the method of payment of the Contract price are as follows:

1. This Agreement, with supplementary Agreements and conditions attached to this Agreement;

2. The plans and specifications, with addenda attached to such plans and specifications, issued before execution of this Agreement, and any amendments made after the effective date of this Agreement;

3. Written interpretations of the Contract Documents and directives to be made from time to time by the ; and

4. Work change orders issued, or to be issued.

B. The Contract Documents together form the Contract for the work described in this Agreement. The parties intend that the Documents include provisions for all labor, materials, equipment, supplies, and other items necessary for the execution and completion of the work, and all terms and conditions of payment. The Documents also include all work and procedures not expressly indicated in such Documents necessary for proper execution of the above-described project.

C. The Contract Documents are to be separately executed in triplicate by Owner and Contractor. Contractor, by executing the Documents, represents that he has inspected and is familiar with the work site and the local conditions under which the work is to be performed. If by inadvertence any of the Contract Documents are not signed, shall identify them.

VII. Designation of ; Duties and Authority

A. The for above-described project is having an office at .

B. The duties and authority of the are as follows:

1. General Administration of Contract.

The primary function of the is to provide the general administration of the Contract. In performing these duties he is Owner's representative during the entire period of construction.

2. Inspections, Opinions, and Progress Reports.

shall keep familiar with the progress and quality of the work by making periodic visits to the work site. He will make general determinations as to whether the work is proceeding in accordance with the Contract. He or she will keep the Owner informed of such progress, and will use his best efforts to protect the Owner from defects and deficiencies in the work. He will not be responsible for the means of construction, or for the sequences, methods, and procedures used in such construction, or for Contractor's failure to perform the work in accordance with the Contract Documents.

3. Access to Work Site for Inspections.

shall be given free access to the work at all times during its preparation and progress. However, he is not required to make exhaustive or continuous on-site inspections to perform his duties of checking and reporting on work progress.

4. Interpretation of Contract Documents Decisions on Disputes.

will be the initial interpreter of the Contract Document requirements, and make primary decisions on claims and disputes between Contractor and Owner. All of ’s decisions are subject to arbitration as provided in this Agreement.

5. Rejection and Stoppage of Work.

shall have authority to reject work that in his opinion does not conform to the Contract Documents, and in this connection to stop the work or a portion of such work, when necessary.

6. Payment Certificates.

will determine the amounts owing to Contractor as the work progresses, based on Contractor's applications and his inspections and observations, and will issue certificates for progress payments and final payment in accordance with the terms of the Contract Documents.

VIII. Responsibilities of Owner

A. Owner shall give all instructions to Contractor through , shall furnish all necessary surveys for the work, and shall secure and pay for easements for permanent structures or permanent changes in existing structures or facilities on the work site, or which are necessary for its proper completion.

B. Owner reserves the right to let other Contracts in connection with the project. Contractor shall cooperate with all other Contractors to the effect that their work shall not be impeded by construction, and shall give such other Contractors access to the work site necessary to perform their Contracts.

IX. 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 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 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 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 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 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. Furnishing of Samples and Shop Drawings.

Contractor agrees to furnish at ’s direction all samples and shop drawings for his consideration and approval as to conformance with the specifications of the Contract Documents and his concepts of design called for in such specifications.

I. Clean-up.

Contractor agrees to keep the work premises and adjoining ways free of waste material and rubbish caused by his or her work or that of his or her 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.

J. Indemnity and Hold Harmless Agreement.

1. Contractor agrees to indemnify and hold harmless Owner and , and their agents and employees, from and against any and all claims, damages, losses, and expenses, including reasonable attorneys' fees in case it shall be necessary to file an action, arising out of performance of the work in this Contract, that is

a. For bodily injury, illness, or death, or for property damage, including loss of use, and

b. Caused in whole or in part by Contractor's negligent act or omission, or that of a subcontractor, or that of anyone employed by them or for whose acts Contractor or subcontractor may be liable.

2. This Agreement to indemnify and hold harmless is not applicable to liability of , or that of his agents or employees, arising out of preparation or approval of reports, opinions, surveys, maps, drawings, designs, or specifications, or out of their giving or failure to give instructions, which giving or failure to give is the primary cause of the injury or damage.

K. Payment of Royalties and License Fees; Hold Harmless Agreement.

Contractor agrees to pay all royalties and license fees necessary for the work, and to defend any and all actions and settle all claims for infringement of copyright or patent rights, and to save Owner harmless in connection with any such actions and claims.

L. 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.

X. Time of Essence; Extension of Time

A. All times stated in this Agreement or in the Contract Documents are of the essence.

B. The times stated in this Agreement or in the Contract Documents may be extended by a change order from , for such reasonable time as he may determine, when in his opinion Contractor is delayed in work progress by changes ordered, labor disputes, fire, prolonged transportation delays, injuries, or other causes beyond Contractor's control or which justify the delay.

XI. Subcontractors

A. Contractor agrees to furnish , 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 or Owner 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.

XII. Mandatory Arbitration

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. Insurance

A. Contractor's Liability Insurance.

Contractor agrees to keep in force at his own expense 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 specified in the Contract Documents 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.

B. Owner's Liability Insurance.

Owner agrees to maintain in force his own liability insurance during the construction on this project, and reserves the right to purchase such additional insurance as in his opinion is necessary to protect him 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.

C. Property Damage Insurance on Work Site.

Owner 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 Owner, 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. Owner shall file a copy of all such policies with Contractor within a reasonable time after construction begins under and pursuant to this Agreement.

D. Waiver of Work Site Property Damage Claims to Extent of Insurance Coverage.

Owner and Contractor waive all claims against each other for fire damage or damages from other perils covered by insurance provided in Paragraph C. of this section. Contractor agrees to obtain waivers of such claims by all subcontractors.

XIV. 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 by a subcontractor, appearing within 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.

XV. Work Changes

A. Owner reserves the right to order work changes in the nature of additions, deletions, or modifications, without invalidating this Agreement, and agrees to make corresponding adjustments in the Contract price and time for completion.

B. All changes will be authorized by a written change order signed by Owner or by as Owner's agent. The change order will include conforming changes in the Agreement Contract and completion time.

C. Work shall be changed, and the Contract price and completion time shall be modified only as set out in the written change order.

D. Any adjustment in the Contract price resulting in a credit or a charge to Owner shall be determined by mutual agreement of the parties, or by arbitration, before starting the work involved in the change.

XVI. Termination

A. Contractor's Termination.

Contractor may, on days written notice to Owner and , terminate this Agreement before the completion date specified in this Agreement when for a period of days after a progress payment is due, through no fault of Contractor, , fails to issue a certificate of payment for the same, or Owner fails to make the payment. On such termination, Contractor may recover from Owner payment for all work completed and for any loss sustained by Contractor for materials, equipment, tools, or machinery to the extent of actual loss plus loss of a reasonable profit, provided he or she can prove such loss and damages.

B. Owner's Termination.

Owner may, on days notice to Contractor, terminate this Agreement before the completion date specified in this Agreement, and without prejudice to any other remedy he may have, when Contractor defaults in performance of any provision in this Agreement, or fails to carry out the construction in accordance with the provisions of the Contract Documents. On such termination, Owner may take possession of the work site and all materials, equipment, tools and machinery on the work site, and finish the work in whatever way he or she deems expedient. If the unpaid balance on the Contract price at the time of such termination exceeds the expense of finishing the work, Owner will pay such excess to Contractor. If the expense of finishing the work exceeds the unpaid balance at the time of termination, Contractor agrees to pay the difference to Owner.

C. On any such default by Contractor, Owner may elect not to terminate this Agreement, and in such event he or she may make good the deficiency of which the default consists, and deduct the costs from the progress payment then or to become due to Contractor.

XVII. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

XVIII. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

XIX. Notices

Any notice provided for or concerning this Agreement shall be in writing and shall 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.

XX. Attorney’s Fees

In the event that any lawsuit 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.

XXI. 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.

XXII. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

XXIII. 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.

In this contract, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.