Terms and Conditions

The follows Terms and Condition are included with the Proposal, Estimate and Contract made by and between Smith-Parnell Construction, LLC and the Client. Upon accepted of the Proposal, Estimate and Contingency Contract.  

For good and valuable consideration, the Parties agree as follows:

1. SCOPE OF WORK: Contractor will provide labor and equipment to perform the scope of work. 

2. Extraordinary Expenses: All extraordinary expenses of Contractor incurred and attributable to the Project, including without limitation losses or expense incurred without the fault or negligence of Contractor and expenses associated with taking emergency action to prevent damage, injury, or loss.

3. Added Benefits: Any other expenses, fees, or services incurred by Contractor in performance of the work on the Project that benefit Client or were provided at the request or direction of the Client, by the execution of the Change Order Agreement.

 4. COST ESTIMATE AND ALLOWANCES: The Contractor’s estimates of Project Costs may be on the Construction Specifications and Allowances. Those Costs are based on Contractor’s experience, the Plans, and Client’s explanation of the Project.  The Contract Specifications and Allowances may also include “allowances,” which are Contractor’s estimates of the expense of certain items (i.e., paint, fixtures, and appliances, etc.).  The estimates are not a fixed fee and will not be used to determine the final consideration owed to Contractor for the Cost of work performed, overhead, or fee.

5. PAYMENTS TO CONTRACTOR: Deposit.  Client will pay an initial deposit to the Contractor upon signing this Agreement. Final Payment.  Final payment will be due upon notification by Contractor of Completion.  Interest.  Any sum not paid within thirty (30) days of the due date shall accrue interest.

6. TIME OF PERFORMANCE: (A)  Commencement.  Contractor will commence work after the contract has been signed, all required permits and approvals have been issued, and Contractor has received the deposit. (B)  Completion.  Contractor will diligently pursue and substantially complete all work within a reasonable time.  Contractor estimates substantially completion. Substantial Completion will occur upon any of the following: (a) issuance of a government certificate of occupancy, final or temporary; (b) notice from Contractor that the work has been completed if a certificate of occupancy is not required; or (c) the Project is useable for the intended purpose.  The estimated date for Substantial Completion will be extended for any reason specified in this Agreement and for causes beyond Contractor’s control, including without limitation, inclement weather, differing site conditions, labor disputes, natural disasters, acts of God, unavailability of materials, stoppage required to comply with governmental order or regulation, and interference by Client. Contractor will not be liable for any damage relating to these extensions.

7. CHANGES TO THE PROJECT OR PRICE: Client may not make changes to the Project without Contractor’s agreement.  Client must timely request any desired change to permit scheduling and completion with minimum interruption and Cost increase.  The Cost to complete the Project may increase or decrease due to: (a) changes to the Project agreed to by the Parties; (b) changes in codes after commencement; and (c) latent defects in the existing structure (such as soil conditions that may require extraordinary work, inadequate structural support, or termite/wood rot or other damage to the existing structure) that could not reasonably have been observed by Contractor before the work.  If a latent structural defect is discovered, Contractor will give Client notice and may prepare an estimate of the anticipated increase in Cost to complete the Project.  Expenses incurred by Contractor in preparing the estimate (such as engineering fees) will be paid by the Client when billed by Contractor unless otherwise agreed in writing.  A change to the Project or Cost will be agreed to by the Parties with the execution of the Change Order Agreement.

8. CONSTRUCTION STANDARDS:  Contractor will construct the Project in substantial compliance with the Construction Specifications and Allowances, any Plans, applicable building codes. If Client has provided the Plans, Contractor is not responsible or liable for errors in them.  Client releases Contractor and will indemnify, hold harmless, and defend Contractor as to any claims, including ones based on Contractor’s own, but not sole, negligence, relating to the design of the Project.

9. FINISH SELECTIONS:  Client will make all finish selections in a timely manner. If selections are not timely made, Contractor may charge Client per day of delay, the Parties agreeing that the actual damages to Contractor for delay are difficult to determine and this amount is a reasonable estimate not intended as a penalty.  Any delay by Client in making a selection will extend by an equal time the date for Substantial Completion. If Client selects an item that exceeds the allowance on the Construction Specifications and Allowances, Contractor may require Client to pay for that item before ordering or installing it.  The payment is not refundable after purchase or installation.

10. PROJECT ORIENTATION:  (A) Project Orientation List.  Upon Substantial Completion, the Parties will inspect the Project and prepare, sign and date a Project Orientation List, listing all items that remain to be completed in accordance with the Construction Standards, including any noted in previous inspections. (B)  Corrective Work.  Contractor will use its best efforts to satisfactorily complete all items on the Project Orientation List within a reasonable time and with minimal disturbance to Client, but the listing of any item will not permit Client to withhold or delay final payment. (C)  Private Inspections.  If Client uses a private home inspector or consultant to inspect the Project, the inspector must at the time of an inspection: (a) maintain all business licenses required by law; (b) have general liability insurance and professional liability errors and omissions insurance of at least $500,000 each. At the beginning of an inspection, Client must provide Contractor with proof that the inspector meets these requirements.  Arrangements for a private inspection must be made at least one (1) week in advance.  If the inspector concludes that there are code violations, the inspector must provide a written list specifying the applicable code(s) and section(s) for each alleged violation.  Any inspection must evaluate construction solely in accordance with the Construction Standards.  

11. LIMITED WARRANTY:  Contractor’s Limited Warranty is a one (1) year limited warranty, which will become effective at Substantial Completion.  The Limited Warranty will be voidable, in Contractor’s sole discretion, in the event that final payment to Contractor is not made.  THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  

12. CONCERNS INHERENT WITH REMODELING PROJECTS:  (A) Matching.  Contractor will use reasonable efforts to match old and new materials and to patch damage to existing materials where they join new materials.  But, the points of connection and patched areas may be detectable.  Contractor has no liability or responsibility to make the old and new materials look identical or joints invisible.  (B)  Property Damage.  Contractor will use reasonable efforts to minimize damage to existing improvements, including, without limitation, driveways, landscaping, lawns, and any other existing improvements on the Property.  However, Contractor is not responsible or liable for minor incidental or consequential damages to the Property, other than the Project, or to Client’s personal property.  Client is responsible for removing or protecting personal property, furniture, landscaping, and other items in the vicinity of the Project. (C) Assumption of Risk & Disturbance.  Client understands and acknowledges that during the course of construction, the residence may not be safe for non-construction personnel.  Client assumes all risks for Client, family members, invitees, agents, or guests, including without limitation, personal injury from, relating to or associated with, the Project or Contractor’s performance, except for gross negligence or willful injury.  (D)  Noise and Dirt.  Loud noise, dust, dirt, and general commotion can be expected during construction.  Client understands and acknowledges that these conditions may exist from approximately 6:00 a.m. to 6:00 p.m., Monday through Saturday.  Client will be solely responsible for addressing any related concerns of neighbors.  (E)  Advertising.  Contractor may display its business sign (subject to applicable ordinances) in a place on the Property visible until Substantial Completion of the Project, and take pictures of the Project, before, during and afterwards, for use in advertising, promotional material, or displays.

13. INSURANCE REQUIREMENTS/RISK OF LOSS.  Contractor must maintain workers compensation insurance required by law and liability insurance for damages to persons or property who enter the Project at Contractor’s request.  Client is responsible for all other insurable risks, including without limitation, property, casualty, and theft insurance in an amount necessary to cover the Project and residence’s contents and to meet any other lender insurance requirements.  Client bears the risk of loss for all materials incorporated into Project or stored on the job site.

14. CLIENT WARRANTIES & RESPONSIBILITIES.  In addition to all other Client duties, the following apply:   (A)  Clientship. Client warrants that it has fee simple title to the Property.  (B)  Access.  Client must provide Contractor and all employees, subcontractors, and suppliers of contractor with adequate access to the Project as required by Contractor to perform this Agreement.  (C)  HomeClient Association Approval.  Client is responsible for obtaining all approvals required by an architectural control committee or community association.  (D)  Survey.  Client is responsible for obtaining any reasonably necessary boundary surveys, site plans, foundation surveys, and final surveys. (E)  Easements and Zoning.  Client must provide any easements, variances, zoning changes, modifications to restrictive covenants, and other similar matters prior to commencement of the Project. (F)  Hazardous Materials.  Client represents that it is not aware of any hazardous materials or substances as defined by the U.S. Environmental Protection Agency, including but not limited to, asbestos, polychlorinated biphenyl (PCB), and lead paint, to which Contractor or its employees or subcontractors may be exposed during work.  If Contractor encounters or reasonably believes it has encountered any of these substances, it may stop work and remove its employees and subcontractors from the area until the nature of and remedy for the materials has been determined.  If that information cannot be determined within a reasonable time, Contractor may terminate this Agreement and be compensated as for Client’s default under this Agreement.  To the fullest extent permitted by law,  Client will indemnify, hold harmless, and defend Contractor from any claims, including ones based on Contractor’s own, but not sole, negligence, arising out of or relating to hazardous materials and substances.

15. JOB CLEANUP:  (A) Contractor shall regularly remove from the Job Site and storage areas all surplus material, waste and debris resulting from the Work. Construction debris shall be removed to a legal refuse collection site with disposal or recycling fees paid by Contractor. At completion of the Work, Contractor shall, in addition, remove from the Job Site all tools, equipment and scaffolding brought to the Job Site by Contractor or Subcontractors. At Substantial Completion, exposed finishes of windows, doors, floors, walls, ceilings, fixtures and trim shall be cleaned and free of grime, stains, over spray, dirt and dust.  (B) Contractor shall provide a trash disposal facility on the Job Site for use by construction personnel. The on-site trash facility provided by Contractor shall be of an appropriate size for the Project and placed in a location approved by Client. All construction debris shall either be placed in the trash facility provided by Contractor or hauled to a legal disposal site, at the discretion of Contractor. When any trash container provided by Contractor is full, contents shall be removed to a legal disposal facility at the expense of Contractor.

16. SUBCONTRACTORS, EMPLOYEES & SUPPLIERS:  Contractor is entitled to select the subcontractors, employees, and suppliers who will work on or provide materials for the Project.  Contractor is solely responsible for hiring, firing, and supervising construction personnel.  Client will not give directions or orders to anyone other than Contractor or its designated Project supervisor.  Client will not interfere with construction personnel, negotiate with, or retain any of Contractor’s employees or subcontractors without Contractor’s prior written consent.  Client will not have any work performed on the Project by other personnel until Contractor has completed the Project or this Agreement has been terminated.

17. DEFAULT:  (A) Default.  Contractor will be default under this Agreement if it abandons work on the Project or otherwise refuses to carry out its obligations under this Agreement (unless the abandonment or refusal is based upon a prior uncured default by Client).  Contractor will be deemed to have abandoned work if neither it nor any subcontractor performs work on the Project for twenty-one (21) consecutive days unless that is the result of a force majeure. Client will be in default under this Agreement if it refuses to permit Contractor to complete performance, fails to pay any amounts when due, or otherwise refuses to carry out its obligations under this Agreement, unless that is based on a prior uncured Contractor default.  (B)  Notice.  If a default occurs, the non-defaulting Party must give the defaulting Party written notice (other than for the payment of money), by certified mail return receipt requested or by hand delivery, which specifies the default.  The defaulting Party will have ten (10) days (except for the payment of a progress payment or final payment) from receipt of the notice in which to begin curing the default, which cure must be continuously pursued and completed within a reasonable time in light of the nature of the default.  If the default is cured within that time, this Agreement will remain in full force and effect and neither Party may assert claims as the result of the default.  If a default is not cured within that time or a payment is not made when due, the non-defaulting Party may suspend performance under the Agreement.  (C)  Termination.  If Client terminates as a result of a Contractor default, Client must pay Contractor: (a) amounts due based on the payment schedule for the work completed; (b) amounts due in any Change Order; (c) amounts due for allowances or finish selections that have been made; and (d) all expenses incurred by Contractor in connection with the Project that are not otherwise covered by this subparagraph.  If Contractor terminates because of a default by Client, Client must pay Contractor all the amounts to be paid to Contractor under the immediately preceding sentence, plus any profit Contractor would have earned under the Agreement absent that default.

18. INTEGRATION CLAUSE:  The contract is the complete agreement between the Parties and may not be modified except in writing signed by all Parties.

19. TERMS:  All pronouns, singular or plural, masculine, feminine or neuter, mean and include the person, entity, firm, or corporation to which they may refer under the context.  Where appropriate in the context, the singular means and includes the plural and the plural means and includes the singular.    20. NOTICES: Notices must be in writing, and delivered: (a) in person; (b) by overnight courier prepaid; (c) by facsimile transmission with confirmation of receipt; or (d) by the United States Postal Service certified mail, return receipt requested, with adequate postage prepaid, addressed to the appropriate Party.  Notice will be effective upon receipt.  Refusal by the addressee to accept notice will be deemed receipt.  The inability to deliver the notice because of a change of address of which no notice was given to the other Party will be deemed receipt.  Either Party may change addresses by giving the other written notice.  

20. NOTICES: Notices must be in writing, and delivered: (a) in person; (b) by overnight courier prepaid; (c) by facsimile transmission with confirmation of receipt; or (d) by the United States Postal Service certified mail, return receipt requested, with adequate postage prepaid, addressed to the appropriate Party.  Notice will be effective upon receipt.  Refusal by the addressee to accept notice will be deemed receipt.  The inability to deliver the notice because of a change of address of which no notice was given to the other Party will be deemed receipt.  Either Party may change addresses by giving the other written notice.