1.1 As used herein, “Contractor” means Baldwin Roofing Company, LLC. “Owner” means the Owner identified on the Estimate who owns the real property on which the Work is performed and who will perform Owner’s obligations herein.
1.2 The term “Work” means the construction and services required by the Contract Documents, and includes labor, materials, equipment, and services provided, or to be provided by Contractor. The “Contract Documents” consist of this Agreement and any written orders for changes in the Work pursuant to Section 9.1 (or other written changes agreed to by both Contractor and Owner) issued after execution of this Agreement. The “Agreement” is the Estimate signed by the Owner, the Estimate Terms and Notices, and these Terms and Conditions which are expressly incorporated by reference. The “Effective Date” is the date the Estimate is signed by the Owner.
2.1 The Total stated in the Estimate is the Contract Sum and includes the items and services estimated to be necessary for the proper execution and completion of the Work, subject to changes made to the Contract Sum in accordance with this Agreement. The Contract Sum also includes any costs for additional work or Additional Decking at prices stated in the Estimate.
3.1 Contractor maintains required insurance. Owner shall be responsible for purchasing and maintaining Owner’s usual liability insurance and shall provide property insurance to cover the value of Owner’s property. Contractor is entitled to receive an increase in the Contract Sum equal to the insurance proceeds related to a loss for damage to the Work covered by Owner’s property insurance. Upon request, each party shall provide certificates of insurance showing their respective coverages.
3.2 Unless specifically precluded by Owner’s property insurance policy, Owner and Contractor waive all rights against each other and any of their subcontractors, suppliers, agents, and employees, each of the other, for damages caused by fire or other causes of loss to the extent those losses are covered by property insurance or other insurance applicable to the Project, except such rights as they have to the proceeds of such insurance.
4.1 The Contract Documents represent the ensure and integrated agreement between the parties and supersedes prior negotiations, representations, or agreements, either written or oral. This Agreement may only be amended or modified by a written modification signed by both Contractor and Owner.
4.2 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work. Contract Documents are complementary, and what is required by one is required by all.
4.3 Any notice, communication, request, reply or advice (collectively, “Notice”) provided for or permitted by this Agreement to be made or accepted by either party must be in writing. Notice may, unless otherwise provided herein, be given or served by depositing the same in the United States mail, postage paid, registered or certified, and addressed to the party to be notified, with return receipt requested; or by delivery by overnight courier; or by e-mail transmission. Notice deposited in the mail as set forth above shall be effective two (2) business days are such deposit. Notice by overnight courier shall be effective one business day after deposit with the courier service. Notice given by e-mail transmission shall be effective on the business date delivered as evidenced by the printed delivery confirmation receipt retained by the sender or by confirmation of delivery. For the purposes of Notice, the addresses of the parties shall be the addresses written for each party on the Estimate.
5.1 Information and Services Required of Owner: (i) If requested by Contractor, Owner shall furnish all necessary surveys and a legal description of the site; (ii) Except for permits and fees under Section 7.3 that are Contractor’s responsibility, Owner shall obtain and pay for other necessary approvals, easements, assessments, and charges (iii) Prior to commencement of the Work, at Contractor’s written request, Owner shall furnish Contractor reasonable evidence of Owner’s financial arrangements to fulfill Owner’s obligations. Contractor is not obligated to commence Work until Owner provides such evidence.
5.2 If Contractor is not paid amounts due when required under this Agreement, Contractor in its sole discretion may suspend all Work. The Contract Sum shall be increased by the amount of Contractor’s costs of suspending and restarting Work.
6.1 Access. Owner agrees to provide Contractor with adequate access to electricity and other utilities as needed, the work site, and the work area adjacent to the structure. Contractor is not liable for, and Owner is solely liable for, the slope or construction of the roof deck, the roofing system, and/or appurtenances if that work was installed by any person other than Contractor, unless otherwise specified by Contractor in this Agreement. Owner agrees to provide roof deck surfaces that are sufficient to receive materials as required. Owner shall be responsible for providing access for any and all trucks necessary for the delivery and/or removal of any materials and/or debris. Owner agrees to provide Contractor with access to the interior of the dwelling or building, upon reasonable notice by Contractor, to inspect for any stains, ceiling damage and/or structural damages prior to performance under the terms of this Agreement. Contractor shall not be responsible for any preexisting stains, ceiling damage and/or structural damage. It is also the sole responsibility of Owner to provide Contractor with all information needed for the Notice of Commencement and Notice to Owner information. Owner shall sign and record the Notice of Commencement as required by law. Owner shall hold harmless and indemnify Contractor from all damages, liabilities, attorneys’ fees and other expenses incurred as a result of Owner’s failure to fulfill its obligations under this paragraph.
6.2 It is the sole obligation of Owner to determine the existence of restriction contained in deeds, subdivision or neighborhood regulations with might relate to or restrict the improvements under this Agreement. Contractor shall have no liability or responsibility for any such non-conformity with such restrictions. Contractor shall be entitled to payment from Owner of all sums due hereunder notwithstanding any injunction/prohibition against the work as a result of any violation of such restriction.
6.3 Protection of Property and Monitoring Fumes. Owner is responsible for satellite dish(es), solar panel(s), lighting rod(s), etc. removal, installation, and re-positioning. Additionally, Owner is responsible for any damages to lighting fixtures, mirrors, pictures and frames, as these items can fall if not firmly attached to the wall or ceiling. Contractor recommends that Owner secure all personal items in advance of construction. If in doubt, please remove all wall hangings until roofing is complete. Contractor is not liable to damage to person or property caused by nails, and Owner agrees that it will take the appropriate precautions to avoid said damage. The cost of testing/abatement for asbestos and lead is the sole responsibility of Owner. As part of the roofing process, odors, and emissions from roofing products will be released and noise will be generated. Owner shall be responsible for indoor air quality and shall hold Contractor harmless, indemnify and defend Contractor from claims relating to fumes and odors that are emitted during the normal roofing process. Contractor is not responsible for any electrical, HVAC or plumbing elements located in attic areas or on the roof.
6.4 Contractor will supervise and direct the Work using Contractor’s best skill and attention. Contractor shall be responsible for and have control over construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work. At Owner’s written request, Contractor will furnish the names of subcontractors (if any) for the Work.
7.1 Unless otherwise provided in the Contract Documents, Contractor shall provide labor, materials, equipment, tools, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work.
7.2 Warranty. Contractor warrants that materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents. Any material or equipment warranties required by the Contract Documents shall be issued in the name of Owner, or shall be transferable to Owner, and commence upon Substantial Completion. There are no other warranties than those stated in this Section 7.2.
7.3 No Other Express of Implied Warranties. To the extent waivable under applicable law, the parties acknowledge and agree that, except as provided under Section 7.2, there are no express or implied warranties provided under this Agreement, and no warranties which extend beyond any express warranty provided. OWNER KNOWINGLY WAIVES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. If the performance of this Agreement does generate any warranties under Section 7.2, any failure by Owner to adequately maintain the Work following Substantial Completion shall void any such warrantees and guarantees.
7.3 Contractor shall obtain and pay for the building permit and accompanying governmental fees, licenses, and inspections for the building permit for the Work. Owner is responsible for any other additional permits or licenses or fees required. .
7.4 Limitation of Liability. (a) IN NO EVENT SHALL CONTRACTOR BE LIABLE TO OWNER OR ANY THIRD PARTY FOR ANY LOSS OF USE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b) IN NO EVENT SHALL CONTRACTOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO CONTRACTOR FOR THE WORK PERFORMED UNDER THIS AGREEMENT.
7.5 Sealed Attic Exclusion. Contractor disclaims any responsibility for and shall not be liable for any roof or structural related issue arising out of or relating to combining a sealed aƫtic system with a self-adhered underlayment, and Owner agrees to indemnify and hold harmless Contractor for any and all damages arising out of said condition, and will not make any claims against Contractor associated with any such conditions.
8.1 Unforeseen Decking Lines. Installation of a new roof to the deck area of the building requires nails and/or screws to be inserted into the deck area. By code, electrical, telephone and security wiring are air conditioning wiring and lines should not be installed directly beneath the roof deck. Owner accepts full responsibility for any necessary repair or replacement.
8.2 Mold Disclaimer. Contractor disclaims all liability for all claims, disputes, rights, losses, damages, causes of action or controversies (“Claims”), pertaining to mildew, algae, fungus, mold and/or other indoor air allergens (“Mold”) including Claims arising out of or relating to the detection removal, disposal, or remediation of Mold, whether those Claims arise in law, equity, contract, warranty, tort, or federal or state statutory claims, and whether those Claims are based on the acts or omissions of Contractor or individuals or entitles under Contractor’s control. Owner is solely liable and responsible for all damages, whether actual or consequential, caused by Mold and incurred by Owner, Contractor or third parties, and agrees to indemnify and hold harmless Contractor from any and all Claims arising out of or relating to Mold.
8.3 Materials. All materials and Work will be furnished in accordance with normal industry tolerances for color, variation, thickness, size, weight, amount, finish, texture and performance standards. Specified quantities are intended to represent an average over the entire roof area. Contractor is not responsible for the actual verification of technical specifications furnished by product manufacturers, i.e., R value, ASTM or UL compliance, instead, the materials used are represented as such by the manufacturer. Metal roofing and especially lengthy flat span sheet metal panels will often exhibit waviness, commonly referred to as “oil-canning.” Oil-canning pertains to aesthetics and not the performance of the panels and is not controlled by Contractor. Owner agrees that Contractor is not responsible for oil-canning aesthetics. Oil-canning shall not be the grounds to withhold payment or reject panels of the type specified. Title to roofing products passes to Owner when said products are delivered to the job site. In the event of a high wind conditions, hurricanes, tornados, or other adverse weather conditions and contractor is requested to remove/reposition product from /on the job site, Contractor shall use its reasonable efforts (subject to weather conditions, life safety concerns and manpower/equipment constraints) to comply with the request. Owner agrees to promptly pay Contractor for these extra services.
9.1 Owner may request changes in the Work within the general scope of the Contract, consisting of additions, deletions or other revisions. If Contractor agrees to perform the changed Work, the Contract Sum shall be adjusted accordingly, in writing, to a mutually agreeable increase in the Contract Sum. If Owner and Contractor cannot agree to a change in the Contract Sum, Owner shall pay Contractor its actual cost plus reasonable overhead and profit of 25%.
9.2 If concealed or unknown physical conditions are encountered at the site that differ materially from those indicated in the Contract Documents or from those conditions ordinarily found to exist, the Contract Sum shall be equitably increased to compensate Contractor for such conditions.
9.3 If Contractor is delayed at any time in progress of the Work by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, force majeure events, or other causes beyond Contractor’s control, Contractor is not responsible for any consequence of such delays and the Contract Sum will be equitably increased for Contractor’s additional costs.
10.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so Owner can occupy or utilize the Work for its intended use. When Contractor believes that the Work or designated portion thereof is substantially complete, it will notify Owner. Warranties required by the Contract Documents, if any, shall commence on the date of Substantial Completion of the Work or designated portion thereof.
11.1 Owner shall not assign the Contract in whole or in part without written consent of Contractor.
12.1 Tests and Inspections. Subject to Section 7.3, at the appropriate times, Contractor shall arrange and bear cost of inspections and approvals of portions of the Work required as part of the building permit. Owner shall bear cost of tests, inspections, or approvals other than those associated with the building permit. Owner shall directly arrange and pay for all other tests, inspections, or approvals where building codes or applicable laws or regulations so require.
13.1 This Agreement is governed by, and is to be construed in accordance with, the laws of the State of Florida, without regard to the conflict of laws provisions thereof. The prevailing party in any legal or equitable action arising out of or relating to this Agreement or the Contract Documents is entitled to recover from the non-prevailing party all attorneys’ fees, costs, and expenses incurred by the prevailing party in connection with the action, including, without limitation, those incurred in mediation, administrative, appellate and/or bankruptcy proceedings.
13.2 Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement or the Contract Documents in any location other than Hillsborough County, Florida, or any forum other than the U.S. District Court for the Middle District of Florida, Hillsborough Division, or the courts of the State of Florida in Hillsborough County, Florida. This venue selection is exclusive, and the parties agree that neither will bring an action anywhere else other than Hillsborough County, Florida. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions in any manner provided by law.
13.3 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTES OR CONTROVERSIES THAT MAY ARISE UNDER THE CONTRACT DOCUMENTS OR THIS AGREEMENT ARE LIKELY TO INVOLVE COMPLEX AND TECHNICAL ISSUES. THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER ON ANY MATTERS WHATSOVER ARISING OUT OF OR RELATING TO, OR IN ANY WAY CONNECTED WITH THE CONTRACT DOCUMENTS, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.
14.1 Termination by Contractor. If the Work is stopped under Section 5.2 for a period of 7 days through no fault of Contractor, or if Owner otherwise materially breaches this Agreement, Contractor may, upon written notice to Owner, terminate the Agreement and recover damages from Owner in accordance with this Section 14.1. The parties mutually agree that because the damages Contractor would sustain on a material breach by Owner are not readily ascertainable, in such event Owner shall pay to Contractor twenty-five percent (25%) of the Contract Sum as liquidated damages (the “Liquidated Damages”). The parties intend that the Liquidated Damages constitute compensation and not a penalty. The parties acknowledge that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a breach by Owner.