Time and Material Building and Construction Contract

Time and Material Building and Construction Contract (Owner to Supply Materials)

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.

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:

1. Description of Work

Contractor shall perform the following described work, in accordance with the contract plans and specifications (the Contract Documents), at (Description of work to be performed):

2. Contract Price

A. Owner agrees to pay Contractor at the rate of $ per hour for the labor performed for the work described above.

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. Owner shall make progress payments (Progress Payments) to Contractor, on the basis of applications for payment submitted to by Contractor as the work progresses, and on the Sworn Certificate of Contractor for the same, in accordance with .

D. Progress Payments may be withheld if:

i. Work is found defective and not remedied;

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

iii. Contractor does not make prompt and proper payments for labor furnished to it;

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

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

3. 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 and equipment for which a lien could be filed, or in the alternative a bond satisfactory to Owner indemnifying him against any and all such liens.

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

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

ii. Work that does not comply with the contract documents;

iii. Outstanding claims of lien; or

iv. 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 it has previously made in writing, and which remain unsettled at the time of acceptance.

4. Starting and Completion Dates

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

5. 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:

i. This agreement, with supplementary agreements and conditions attached to this agreement;

ii. 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; and

iii. 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 it has inspected and is familiar with the work site and the local conditions under which the work is to be performed.

6. Designation of (e.g. Architect or Engineer, if there is one active on the project)

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

7. Responsibilities of Owner

A. Owner 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 shall provide and pay for all materials necessary for the proper completion of work on the project in accordance with the Contract Documents.

C. 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 its construction, and shall give such other contractors access to the work site necessary to perform their contracts.

8. 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 its 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 its 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. Contractor shall provide and pay for all labor, 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. Procurement of Licenses and Permits. Contractor 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, Contractor shall notify Owner 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 its employees on the project, for those of its subcontractors and their employees, and for those of all other persons doing work under a contract with it.

G. 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.

8.H. Clean-up.

Contractor agrees to keep the work premises and adjoining ways free of waste material and rubbish caused by its work or that of its subcontractors. Contractor further agrees to remove all such waste material and rubbish on termination of the project, together with all his or her tools, equipment, machinery, and surplus materials. Contractor agrees, on terminating its 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. Indemnity and Hold Harmless Agreement.

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.

J. 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.

9. Extension of Time

The times stated in this agreement or in the contract documents may be extended by a change order from Owner 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.

10. Subcontractors

A. Contractor agrees to furnish Owner, prior to the execution of this agreement, with a list of names of subcontractors to whom it to award the principal portions of the work to be subcontracted by Contractor.

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 Owner reasonably objects, nor shall Contractor be required to hire a subcontractor to whose employment it 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.

11. Insurance

A. Contractor's Liability Insurance. Contractor agrees to keep in force at its own expense during the entire period of construction on the project such liability insurance as will protect it 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 $. 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. Property Damage Insurance on Work Site. Owner agrees to maintain at his or her expense during construction of the project property damage insurance on the work at the site to its full insurable value, including interests of Owner and Contractor, against fire, vandalism, and other perils ordinarily included in extended coverage. Losses under such insurance will be adjusted with and made payable to Owner and Contractor, as their interests may 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.

C. Waiver of 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 B of this Section. Contractor agrees to obtain waivers of such claims by all subcontractors.

12. 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 her or by a subcontractor, appearing within from the date of any issuance of a certificate of substantial completion, or within such longer period as may be prescribed by law.

13. 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. The change order will include conforming changes in the agreement 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.

14. Termination

A. Contractor's Termination. Contractor may, on days written notice to Owner, terminate this agreement before the completion date specified in this agreement when for a period of days after a Progress Payment is due, and through no fault of Contractor, 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 equipment, tools, or machinery to the extent of actual loss, provided it can prove such loss.

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.

15. 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.

16. Governing Law

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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

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