ARTICLE 1 CHANGES
1.1 Owner and Contractor agree that any change to this Contract shall be in writing in the form of a written Change Order, which shall be agreed to and signed by both parties prior to commencement of any related work. Additional labor will be charged at $65/hour per worker. Additional material will be charged by unit price. A Change Order may cover additions, deletions, or modifications to the original scope of work and terms included in this Contract, and may alter the ultimate contract price or contract completion time, which shall be adjusted accordingly.
1.2 Price escalation: In the event of significant delay or price increase of material or equipment that occurs during the performance of the Work through no fault of Contractor, the Contract Sum, time of completion, and/or contract requirements shall be equitably adjusted by Change Order in accordance with the process set forth in the Contract Documents, approval of which shall not be unreasonably withheld. A change in price of an item will be considered “significant,” warranting an adjustment, when the price of the item increases 20% or more between the date of this Contract and the date of purchase of the item for the Project.
1.3 Force Majeure: If Contractor’s ability to procure materials or perform the Work is impacted by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions/Acts of God, impacts of epidemic and pandemic, or other causes beyond the Contractor’s control, then Contractor may be entitled to an equitable adjustment on contract price and time for performance. Contractor shall be granted an equitable and reasonable extension of time to finish the project, and related reasonable additional compensation for the period of delay to cover Contractor costs, including but not limited to additional equipment rental costs, labor costs, extended overhead, demobilization and remobilization costs, etc.
ARTICLE 2 CONTRACTOR’S RESPONSIBILITIES
2.1 Contractor shall exercise skill and judgment in fulfilling its obligations in performing the scope of work under this Contract.
ARTICLE 3 OWNER’S RESPONSIBILITIES
3.1 Owner shall provide full information about the objectives, schedule, constraints and existing conditions of the Project. Owner shall provide decisions and furnish required information in a prompt manner for the orderly progress of the Work. Owner shall furnish consulting services not provided by Contractor or Manufacturer, but required for the Project, which might include architecture, engineering, surveying, geotechnical engineering, environmental testing services, and CAD layout of racking design. Contractor and its materials manufacturer shall be entitled to rely on the accuracy and completeness of any such information Owner provides.
3.2 Owner agrees to furnish and approve, in a timely manner, information required by Contractor and to make payments to the Contractor in accordance with the requirements of this Contract. Owner shall provide Contractor with reasonable evidence of its financial resources to complete the Project and pay its financial obligations to Contractor under this Contract. Such evidence may be in the form of lending documents or bank statements.
3.3 Clearance of Work Area: In advance of Contractor’s arrival to the site, Owner shall have all Work areas clear and accessible for Contractor to perform the Work unimpeded. If the area is not clear and accessible for Contractor, Owner shall clear the area and pay Contractor additional fees for its downtime at a rate of $260/hour (four workers x $65/hour/person) without the need for a Change Order. Contractor will render an accounting of the number of workers and number of hours waiting for Owner to clear the Work area, and will add these additional fees to the final invoice. Owner agrees to and shall pay these fees.
3.4 In the event Owner hires its own subcontractors or employees to perform Work on the Project, Owner shall be solely responsible to pay any and all of its employees and/or subcontractors for work performed on the Project. Owner agrees to indemnify Contractor, defend Contractor, and hold Contractor harmless from any loss or liability that results from claims of any of Owner’s employees and/or subcontractors or any others arising from the performance of Work on the Project by Owner’s employees and/or subcontractors.
3.5 Owner accepts sole responsibility for all costs resulting from delays or interference on the part of Owner, Owner’s agents, or Owner-solicited subcontractors or employees working on this Project. All resulting corrective work, including labor, materials, subcontractors, overhead and profit, or any other costs, including construction liens resulting from that work, will be the sole responsibility of Owner.
ARTICLE 4 UNKNOWN AND HAZARDOUS CONDITIONS
4.1 Existing Structural Defects and Unknown and/or Unseen Conditions: Contractor is not responsible for existing structural defects, code violations, or hidden conditions or hazardous materials that are not visible or apparent to Contractor prior to performance of the Work. Any such conditions that result in additional work and/or remediation, which may result in a Change Order. Owner agrees that it shall not unreasonably withhold approval for such Change Orders. Any latent defects in the Project site, discovered during installation, shall be corrected at Owner’s expense. Any breach of the terms of this Section shall entitle Contractor to suspend performance under this Contract or demand payment in full with respect to all completed work and damages with respect to the balance of this Contract.
4.2 Contractor and Contractor’s subcontractors shall have no responsibility for the identification, discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials in any form at the Project site.
4.3 Abatement of Hazardous Materials: Owner agrees that any hazardous materials requiring specialized abatements discovered in the course of Contractor’s performance of the Work may result in a Change Order at an additional cost to Owner. Owner agrees that it shall not unreasonably withhold approval for such Change Orders.
ARTICLE 5 CONTRACTOR REMEDIES
5.1 Prompt Payment Required: Owner understands that the material costs must be paid in advance, due to the custom nature of the racking systems that Contractor is ordering for Owner. If Owner does not make payment, Contractor shall not order the materials. Further, Owner’s prompt payment of progress payments is necessary to ensure continued progress of the Work.
5.2 Failure of Prompt Payment: Owner’s failure to make any payment when due shall be a material breach of contract that shall entitle Contractor, at its option, to suspend its performance hereunder. Contractor reserves the right to stop work until Owner makes the progress payment, which will be subject to an increase by a reasonable sum to cover the costs of shutdown, delays incurred, and re-startup. Contractor reserves the right to terminate this Contract altogether if work is stopped for ten (10) consecutive calendar days due to Owner’s failure to make prompt progress payments.
.1 In the event Contractor terminates due to Owner’s failure to pay, Owner agrees:
a. To pay Contractor for all work executed to date, including all labor, materials, equipment, and services invested in the project to date, and for all Contractor’s losses from delays or stoppage of the work, including reasonable overhead, profit, and damages.
b. To pay Contractor all special, indirect, or consequential damages resulting from work shutdown or termination of this Contract.
c. To pay Contractor for all Work executed, and any proven expenses or losses related to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit, and damages.
.2 Interest for late payments: Payments not made within fifteen (15) days of the due date are delinquent and shall bear interest at the rate of one and one-half percent (1.5 percent) per month, or the maximum amount allowed by law, whichever is greater, until paid.
.3 Costs of Collection: Owner agrees to pay reasonable costs incurred by Contractor in the collection of any delinquent amounts, including attorney fees and costs for any claims process and for preparing and filing liens, regardless of whether suit or action is instituted.
ARTICLE 6 MISCELLANEOUS PROVISIONS
6.1 This Contract shall be governed by the laws of the State of Minnesota.
6.2 Neither party to this Contract shall assign the Contract as a whole without written consent of the other.
6.3 To the extent items and provisions in this Contract conflict with the any specifications or other document, the terms of this Contract control.
6.4 Nothing contained in this Contract shall create a contractual relationship with, or a cause of action in favor of, a third party against either Owner or Contractor.
6.5 Cancellation Policy:
6.6 Product Warranties:
6.6.1 New Products: All product warranties come from product manufacturer. Contractor provides no product warranties. If, at delivery, any material warranty issue arises, and Owner raises that warranty issue within 15 days of product installation, Contractor will address the issue with the manufacturer at no charge.
6.6.2 Used Products: No product warranties exist for used materials purchased for the racking system.
6.7 Dispute Resolution
Any controversy arising out of the interpretation or performance of this Contract shall first be decided by mediation, where the parties agree to participate in good faith in an effort to resolve any dispute, before a mediator of their mutual choice. In the event mediation fails, and other settlement negotiations, if any, fail, the parties agree to litigate their dispute in a court of competent and proper jurisdiction in the county where the project is located. Nothing in this section shall preclude or be construed to preclude Contractor from taking steps (including, without limitation, the filing and prosecution of a law suit) to protect its Mechanic’s Lien rights. In the event Owner breaches this Contract, Contractor shall be entitled to costs, including attorney fees and legal expenses, of any claims process required to protect Contractor’s rights.
6.8 NOTICE OF LIEN
As required by the State of Minnesota Construction Lien Law, Contractor notifies Owner that:
A. ANY PERSON OR COMPANY SUPPLYING LABOR OR MATERIALS FOR THIS IMPROVEMENT TO YOUR PROPERTY MAY FILE A LIEN AGAINST YOUR PROPERTY IF THAT PERSON OR COMPANY IS NOT PAID FOR THE CONTRIBUTIONS.
B. UNDER MINNESOTA LAW, YOU HAVE THE RIGHT TO PAY PERSONS WHO SUPPLIED LABOR OR MATERIALS FOR THIS IMPROVEMENT DIRECTLY AND DEDUCT THIS AMOUNT FROM OUR CONTRACT PRICE, OR WITHHOLD THE AMOUNTS DUE THEM FROM US UNTIL 120 DAYS AFTER COMPLETION OF THE IMPROVEMENT UNLESS WE GIVE YOU A LIEN WAIVER SIGNED BY PERSONS WHO SUPPLIED ANY LABOR OR MATERIAL FOR THE IMPROVEMENT AND WHO GAVE YOU TIMELY NOTICE.
C. In the event it becomes necessary for Contractor to file a Mechanic’s Lien Statement because of non-payment by Owner of any sum required under this Contract, then, in addition to all sums required under the Contract, Owner agrees to pay the costs of the preparation and filing of the Mechanic’s Lien Statement, including reasonable attorney’s fees in connection therewith, as well as all other fees and costs allowed by statute.
D. This notice shall constitute Contractor’s timely pre-lien notice.
Entire Agreement; Representation of Authority
This Contract constitutes the entire agreement between the parties hereto and supersedes all prior agreements, proposals, representations, and commitments relating to the subject matter herein. This Contract as originally written and printed, along with any terms and specifications will override any other attempted modifications, except for written changes prepared and authorized pursuant to the terms of this Contract. The persons signing this Contract represent and warrant that they have the necessary and proper authority to execute the Contract and bind the party for whom they sign.
