FIXED PRICE 100% NEW CONSTRUCTION CONTRACT
This agreement made this _____ day day of _______ 20__, by and between _________________________ _____________________________________ ______________________herein __________herein referred referred to as "Owner or Landowner", and _________________________, _________________________, a __________ Corporation herein referred to as "Contractor or Builder". Construction shall commence no later than five days after closing of the property and issuance of permits. Scope of Work construction budget and detailed fixed “100% New Construction Breakdown Form” of work to be performed is, attached hereto as “Exhibit A”, and is hereby made part of this contract. Owner and contractor in consideration of the mutual covenants hereinafter set forth agree as follows:
SECTION ONE: STRUCTURE, SITE & ON TIME TIME BUILDER’s GUARANTEE GUARANTEE
Contractor shall furnish all material, labor, and equipment necessary for the renovation rehabilitation and modernization modernization of the residence and be responsible for hiring and paying all subcontractors and material used on the job at the property location: _______________________ _______________________ which location Owner warrants he/she owns or will own at the time of work commencement, free and clear of liens that would inhibit Owner’s ability to pay contractor. BUILDER’S “ON TIME GUARANTEE” & FAST BUILD GUARANTEE : said work detailed herein must be completed no later than the due date specified in the Fast Build Guarantee Addendum annexed hereto and a part of this agreement. If the project is not completed by the required deadline therein, then a per day penalty shall be paid paid thereafter from the Contractor to the the Owner under the terms specified in the “On Time Fast Build Guarantee Addendum” - which addendum’s terms and conditions govern and control this guarantee section- until project completion and final finishing (see said addendum). SECTION TWO: PLANS Approved & Project Management Prior to Closing
Contractor shall construct and build the structure in conformance with the plans, specifications, permits, and 100% New Construction Construction Breakdown Form detail detail of construction costs costs and tasks to be provided and performed by the the Contractor (attached hereto) as the the accepted Draw Schedule of Payments to be made by or on behalf of Owner to Contractor for this engagement of work as completed. The 100% New Construction Draw Schedule Schedule when signed by Contractor Contractor and Owner is made part of and subject subject to the terms of this agreement. It is agreed that prior to closing Contractor shall Project Manage and Architecturally Expedite and obtain all City Engineering, Geological, Architectural, Zoning, Site Plans, Building Permits and Approvals required as City stamped and approved before closing at Contractor’s cost to be reimbursed at real estate and construction loan/purchase closing. Closing will not take place without zoning permits and project management contracted. All work shall be performed in a professional and workmanlike workmanlike manner according according to all industry, city, city, state, and federal construction guidelines and codes. Contractor shall have discretionary authority to make changes and modifications on site at the point of construction to plans, layouts, room designs, materials, and square footages up to 5% that in the Contractor’s sole and exclusive opinion best meet the bank appraisal requirements of the job and maximize the equity value projected for the Owner or that are required by local zoning requirements and contingencies. It is understood and agreed by the Owner the actual measurements on the job site, may require the Contractor to use their discretionary authority herein to revise the layouts, and plans drawn by the architect without new plans being redrawn – as permitted by the City inspector on site. Contractor is responsible for furnishing all improvements to the main structure and land as detailed in the plans such as landscaping, grading, walkways, outside door painting, sewer or water systems, steps, driveways, patios and aprons, etc., as specifically stated in the 100% New Construction Breakdown Form. Contractor agrees and is responsible to with all diligence, reasonableness and in all good faith, to charge only the fixed cost of construction payment amount below which is a firm cost of the total new construction build for the plans and specifications herein on the above listed property
and Contractor agrees it is not to exceed that dollar amount in aggregate except with prior written permission signed by the the Owner.
SECTION THREE: FIXED PRICING & PAYMENT
Owner shall pay contractor the FIXED FIXED PRICE SUM of ##Calc1## Dollars ($##Re-Construction ($##Re-Construction Amount##) in installments as set forth herein and broken down in the property draw “Schedule of Values Contractor Break Out of Fixed Budget” addendum to this construction agreement signed by Owner and Contractor. It is agreed that all payments hereunder are subject to the terms and conditions of the escrow agreement of the Lender and that no amount will be paid until that portion of work is completed and certified as finished by the Lender or Owner as may be provided therein. It is agreed and understood that 10% of the New Construction Breakdown Form Fixed Price Sum of contracting budget shall be disbursed at the time of property purchase and closing (from the loan proceeds/escrow) for architectural, project management, and expediting the build out when all permits and drawings are provided. It is understood and agreed that this advance outlay and cost is escrowed and paid by the finance company to expedite the immediate excavation and lot clearing of the job directly after closing, speed the build out and finishing of the property, and hire professional Project Management Audit and Control Services over the contractor’s progress and quality of work performed throughout the build. In the event any installment in the 100% New Construction Draw Breakdown contract schedule is not paid directly after work is performed, including the final draw or retainage due, contractor may stop work until payment is made unless such non-payment is the result of the actions or inactions of the Contractor. In the event any installment is not paid within five (5) days after it is due, contractor may take such action as may be necessary, including legal proceedings, filing of mechanics liens, and declaring the the contract in default, and any any related agreements in default and void. void. If contractor in fact is ever over advanced draws prior to the equivalent percentage of work being completed, than either such overdrawn amount shall be repaid by CONTRACTOR within 48 hours of Owners written demand or such work as deficient shall be immediately completed and performed within 21 business days of said demand, and no further draws of the escrow shall be made until this work is accomplished. If the bank does not pay for its site inspections, client shall pay for same.
SECTION FOUR : PREPARATION
During construction, Owner shall provide access to the property lot identified herein with free and clear title ownership to their building lot. Contractor shall correctly confirm and obtain zoning approval with the Project Manager for the structure anticipated, identify, and stake the property boundaries of owner's owner's property by stakes at all corners corners and within the excavation excavation as well as City Approved. Contractor shall maintain such stakes – if required - in proper position throughout construction. Contractor is also responsible to obtain all necessary zoning and building permits on owner’s behalf in order to work within all legal requirements, building codes, and ordinances of the local and State authorities and a s supervised by the Project Manager.
SECTION FIVE : UTILITIES
During construction, on Owner’s behalf, Contractor shall activate water, gas, and electrical usage meters and usage services, including 200 amp power to the site at and under Owner’s expense and credit line billed to Owner by the given utility for usage and meter set up. Subject to the terms of this Fixed Price Construction Agreement – as detailed in the 100% New Construction Breakdown Form and herein - Contractor shall connect permanent electrical service, gas service or oil service, whichever is applicable, and water service and lines to the structure upon acceptable inspection and locale approval
prior to wall sealing, insulating, insulating, and covering and according to local code. Contractor Contractor shall, at Contractor expense, connect and bring in sewage disposal and water lines into the structure as well.
SECTION SIX: WARRANTIES
Contractor will be responsible for all claims arising out of improper placement or positioning of boundary stakes or house house stakes. Contractor shall inspect inspect and identify any and all potential potential and existing existing Environmental Protection Protection issues on on the property and and include any such such issues to be resolved resolved in this this construction fixed cost cost contract for removal and/repair and/repair or remediation. If an EPA issue is discovered discovered after construction has commenced taking the project outside of acceptable codes and laws, and said issue is not noted on the scope of work construction budget, than the Contractor will be fully responsible and liable for removal and/or repair of such issues issues at Contractors own expense. expense. Contractor will be responsible responsible to Owner and its Homeowners Association for all damages to persons or property caused or precipitated by Contractor or his agents, employees, sub-contractors, or third parties, excepting acts of God or other causes beyond Contractor's control. All new systems and construction installed or built by Contractor shall be warranted for one year after final appraisal, including Plumbing, Electric, HVAC, CAC and Roofs under the Contractors separate Limited Warrantee Agreement. Roofs include a total 10 year warrantee from roofing sub-contractor. Appliances shall also be warranted under their respective 1 YEAR manufacturer’s warrantees. Structural components shall be warranted by the Contractor one additional year for a total of 2 years under the Contractors Limited Warrantee Agreement. All warrantees are subject to proper home maintenance being performed annually. Contractor shall not be responsible for damages to persons or property caused by Owner or his agents including property managers and tenants, third parties, acts of God or other causes beyond Contractor's control. Owner may not visit property during construction without Contractor pre-approval and escort being present due to insurance insurance requirements. Contractor shall shall not in any case or situation situation have liability or responsibility to the Owner for loss of rents, loss of tenants, loss of profits or the like of any nature whether due to delay, or repairs, or warrantees or any other cause or alleged cause. Owner shall save and hold Contractor harmless from, and shall indemnify Contractor for, all costs, damages, losses, and expenses, including judgments and attorneys fees, resulting from claims arising from causes enumerated in this paragraph. Owner will procure at Owners Expense and before the commencement of any work hereunder, builders risk, fire insurance and other hazard and liability insurance with course of construction, vandalism and malicious mischief clauses attached naming the Bank and Contractor as additional insured’s in such amounts as warranted to protect the interests of the parties hereto and the bank. Contractor shall in no case and under no conditions be responsible for loss of rents, tenants, profits from rents, equity valuation losses or alleged valuation losses or differences of any nature whatsoever whether at appraisal or final sale - or for reasonable delays in the finalization of the property punch down list after final appraisal for the Owners possession of the premises or rental to a tenant. Contractor is also not responsible for any damages incurred due to basement water or flooding problems – other than to remedy same under its warrantee and to make consistent pro-active and continual efforts to resolve and stop any such problem during the warrantee period. Contractor and Contractor’s representatives and subcontractors shall be duly licensed and shall maintain adequate insurance coverage for the scope of work under the terms of this Agreement including without limitation workers compensation compensation coverage. Contractor shall indemnify and hold Owner and owner’s agents and Homeowners Association harmless of and from any and all claims, demands, losses and damages of any kind arising from Workers Compensation claims, Mechanics Lien Claims, General Liability Claims, Property Damage Claims and Commercial Auto claims regarding the subject property. Contractor agrees to name Owner and its Homeowners Association as additional insured during this agreement . In the event of a default by Contractor, Owner shall retain any and all rights and remedies available to the Owner at law or in equity.
SECTION SEVEN: POSSESSION & TERMINATION
Owner shall not have possession of the structure until such time as all payments or other obligations required by them to the Contractor, as set forth in this agreement, have been fully paid. If possession of the structure structure is taken by the Owner before before the above obligations obligations are met, without the written written consent of Contractor, it shall be considered as acceptance of the structure, by the Owner, as 100% completed and 100% satisfactory and there shall be no other obligations remaining between the parties except as written below. In such case, the Contractor shall have no additional recourse of any nature against the property or Owner excepting to be paid for all work performed and contracted for according to the 100% New Construction Breakdown Draw Contract attached hereto and hereby made part of this agreement. Excepting this final payment obligation, this agreement shall then be considered terminated and no further obligation shall exist between the parties excepting warranties. In order to induce Contractor to include the Fixed Price, One Year Warranty and Fast Build “On Time Guarantee” clauses and addendums to this Contract, Owner agrees this contract is non-cancelable by Owner and Contractor except by breach of contract by Contractor or written mutual agreement and release of the parties each to the other. Liquidated damages to the Contractor for breach of this provision are the total payment amount due herein.
SECTION EIGHT: INDEMNIFICATION and Sub-Contractor Mechanics Liens
To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Landowner and the Landowner’s agent and employees from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent or intentional acts or omissions of the Contractor, the Contractor’s subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in the Section. In claims against any person or entity indemnified under this Section by any employee of the Contractor, the Contractor’s subcontractor, anyone directly or indirectly employed by them or anyone whose acts they may be liable, the indemnification obligation under this Section shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or the Contractor’s subcontractor under workers’ or workmen’s compensation acts, disability benefits acts or other employee benefit acts. Contractor agrees to pay for all materials, equipment, labor and instrumentalities used in or in connection with the performance of this contract when and as bills or claims therefore become due and to save harmless and indemnify and protect the premises, Contactor and the Owner from and against any claims and mechanics liens on account thereof, and Contractor may retain monies for such indemnification.
SECTION NINE: GENERAL PROVISIONS
Owner agrees to promptly complete the necessary requirements to obtain financing and to take ownership of the the site for to begin construction. construction. There are no understandings understandings or agreements agreements between Contractor and Owner other than those set forth in this agreement and in the documents referred to in Sections Two and Three. No other statement, representation or promise has been made to induce either party to enter into this agreement. agreement. This agreement and the documents documents referred to in Sections Two Two and
three may not be modified or amended except by written agreement of the parties. In witness whereof, the parties have executed this agreement agreement the day and year first written written above. Neither party has any authority authority to bind the other in any way. This agreement constitutes the entire agreement between the parties relating to the subject matter hereof. Except as expressly provided herein, this agreement shall not be amended except by written agreement between the parties. No oral waiver, amendment or modification shall be effective under any circumstances. If any term, covenant or condition of this agreement shall for any reason be held unenforceable by a court of competent jurisdiction, the remainder of the agreement shall remain in full force and effect and shall in no way be affected or impaired. The representations and warranties herein shall survive termination or expiration of this agreement. This agreement shall be governed and construed under the laws of the State of Pennsylvania where the Contractor and property is located, including choice of law rules. Failure to maintain a valid NRIA Project Management Power of Attorney in force and on hand is a breach of this agreement and any “Fast Build Guarantee” addendum signed.
SECTION TEN: BINDING ARBITRATION REQUIRED
Both parties agree that any dispute resulting from the construction of the property, regardless of when it arises or arose; will be resolved through means of binding arbitration administered by The American Arbitration Association (AAA), 230 S Broad St, Philadelphia, PA (215)732-5260. (215)732-5260. Any dispute of any nature regarding this agreement or the construction project performed or being performed hereunder shall be included in such arbitration. By signing this agreement this agreement affects important legal rights of both parties and both parties understand and agree that they are waiving their right to a jury trial, before a judge in a public court. Furthermore, they agree they will not have the right to participate as a representative, or member member of any class of claimants, pertaining to to any dispute subject subject to the purchase of this property, or arbitration. The parties hereto agree that that they shall bear individually the costs of their arbitration representation. This will typically include up to $500 of AAA filing fees and any cost of expert witnesses, legal representation, and travel that may be incurred. The arbitrator shall use the application of law as its standard in rendering its decision. SECTION ELEVEN: HIGH LEVEL LUXURY SPEC MATERIALS & WORKMANSHIP
Construction will include the Contractor’s Standard Luxury Specifications as detailed below. Please note there may be additional construction changes, features, amenities, and elements added or modified to the property based upon the contractor’s design expertise and builder’s authorized discretion provided for herein in order to in in good faith to meet the the Scope of Work Requirements assumed assumed by the Appraiser or your Project Manager. Complete New Construction, Excavation, New Basement, & Three Story Build Up will include the following Required Luxury Specifications:
Contemporary- New Construction Conditional Ratings & definition: C1 The improvements feature no deferred maintenance, little or no physical depreciation, and require no repairs. Virtually all building components are new or have been recently repaired, refinished, or rehabilitated. All outdated components and finishes have been updated and/or replaced with components that meet current standards. Dwellings in this category either are almost new or have been recently completely renovated and are similar in condition to new construction.
Quality Ratings & definition: Q2 Dwellings with this quality rating are often custom designed for construction on an individual property owner's site. However, dwellings in this quality grade are also found in high-quality tract developments featuring residences constructed constructed from individual plans or from highly modified or upgraded plans. The design features detailed, high-quality exterior ornamentation, high-quality interior refinements, and detail. The workmanship, materials, and finishes throughout the dwelling are generally of high or very high quality.
Civil, Architectural Drawings, CAD Drawings, Engineer Stamped Drawings (as required by code) Expedited Vacant Property Permit, Dumpster Permits, Demo Permit, Zoning Permit, Building Permits
Foundation: All foundation walls will be constructed of a solid poured concrete or Precast at a minimum of 10”
wide. Finished Basement heights are required required to be at a minimum minimum of 7’ if applicable.
Utilities: New Water Service, Sprinkler System, Sewer, Yard Drain/Rain Leader, & Curb Trap New 200 Amp Electrical wiring Throughout w/ High Hats (All (All Baths and exterior of properties properties to have Chrome
Modern Fixtures) New HVAC Unit New Plumbing Manifold System All Appliances & Systems to Run on Gas Framing: All Carpentry to have a standard minimum of: 2x6 Exterior Walls 2x12 Joists 2x4 Interior walls TGI & LVL Beams where specified by the structural engineer Custom Built Stained Stairs Roof: New Roof with 10 Year Limited Warranty Veneer: 4” Brick (Manufacturer may vary) Bays: Metal Siding or Hardy Panel Systems (Color and Design to Vary)
Smooth Stucco: Exposed sides of building or rear Kitchen: Dulce Dark Maple Flat Panel Contemporary 42” Custom Custom Cabinets w/ Self-close Drawers and Modern Stainless Steel Handles or equivalent Ed ging (Color to Granite Counter Tops or Quartz(1 1/4” Thick) w/ eased Modern Edging Vary) GE Stainless Steel Appliances or equivalent Grohe Conchetto Dual Spray Pull Down D own Stainless Steel Kitchen Faucet- Model # 32655
Master Bath: Ultra Modern European Bath- Covered w/ 12” x 24” Modern Porcelain Tile (colors to Vary)
Contemporary Fixtures European Contemporary Shower Grohe Systems with Chrome Handheld Shower Stick and Overhead Rain Shower or equivalent Vanity:
Custom Built Solid Wood Maple Wenge Modern Wall Mount Vanity w/ undermount sink Stainless Steel Grohe vessel faucet Tops: Marble Top Toilet: Kohler Persuade® Persuade® two-piece elongated toilet with Dual Flush Technology K-3654
Secondary baths:
Tile: 16” European Travertine Tile, 12” x 24” Porcelain Tile or equivalent (colors to Vary) Tub: Kohler Archer 5' bath- Model #K-1123or Equivalent
faucet trim Kohler Oblo® Rite-Temp® pressure-balancing bath and shower faucet Model # K- T10055-9 or Equivalent Vanity: Custom Built Solid Wood Maple Wenge Modern Modern Wall Mount Vanity w/ undermount sink Stainless Steel Grohe vessel faucet Tops: Marble Top Toilet: Kohler Persuade® Persuade® two-piece elongated toilet with Dual Flush Technology K-3654
Powder Room‐ If applicable: If applicable: Tile: 16” European Travertine Tile, 12” x 24” Porcelain Porcelain Tile or equivalent(colors equivalent(colors to Vary) Vanity: equivalent Kohler Reve™ pedestal lavatory with Grohe Vessel Faucet or equivalent
Toilet: Kohler Persuade® two-piece elongated toilet with Dual Flush Tech nology K3654 Flooring: Wide Plank Engineered Hard Wood Flooring (Minimum ½” thick) or equivalent (Species and Color to Vary) Custom Wood Landscape: New Concrete Sidewalk & Rear Patio surrounded by Custom FencinADDITIONAL NOTES: Also included is a 10 year tax abatement Subject will be 100% 100% Complete Complete New New Construction Constru ction Comparable Comparable to the t he highest leve l evell of 100% 100% New New Construction in the th e city.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed as of the date set forth below.
For the Owner: _________________________ _______________________________ ______
X_________________________ X_____________________________ ____
Date
For the Contractor: ________________________ _______________________________ _______ Date
Firm Address & Telephone: _______________________ _______________________
Owner Signature ________________________ ______________________________ ______ Owner Name & Address
_________________________ _______________________________ ______ Contractor Signature
_______________________ _______________________________ ________ Name & Title ______________________ _______________________________ _________ Firm Name