39 Years of Strength, Quality, Durability and Craftsmanship
THIS AGREEMENT (the “Agreement”) is made by and between CJ Delery Enterprises, Inc. (“Contractor”) and the Owner, collectively hereinafter referred to as the “Parties,” subject to the Proposal and the following agreed upon terms and conditions:
1. Scope of Contract: The Contractor will perform the work contracted for, subject to the tolerances, deviations and practices customary in the local building industry at the Ownerâ€™s property (“Site”), as described and acknowledged in the Proposal. The Work includes and is comprised of the Contractorâ€™s duties to perform labor and services in relation to the completion of the project, including providing all necessary equipment, materials, and supplies in order to complete the Work, according to the attached Proposal. Owner acknowledges that this contract is for a “lump-sum,” NOT of a “cost-plus” variety, and therefore is not to be adjusted unless the parties otherwise agree in writing and provide consideration for such a modification. The Contractor shall provide and pay for all materials, labor, equipment and tooling needed to complete the Work, specifically stated above, except as otherwise agreed upon by the Parties in writing. In the event that the Contractor is unable to obtain materials or equipment required by the Specifications above, the Contractor shall have the right to substitute said materials with materials of similar likeness and quality.
2. Time of Completion: The Work shall be completed within a reasonable time thereafter (the term of the contract, hereinafter the “Term”). The Contractor will commence as soon as is practical after the signing of this Agreement and all payments have been made to the satisfaction of the Contractor. The Contractor shall proceed with the Work as expeditiously as possible, however the Contractor shall not liable in any manner for any delay caused by inclement weather, fire, casualty, disability, death, natural disaster, or acts of God; any shortage of labor, supplies, or materials; any acts of the Owner, its agents, or adjacent residents; any delay caused by carriers, governmental interference, act of public or private authorities, work stoppage, or labor strikes; any acts of terrorism or war; or any other act, cause, or omission beyond the immediate control of the Contractor. This list is merely illustrative of possible causes for delay and is not intended to be all inclusive.
3. The Contract Price: The Owner shall pay to the Contractor for furnishing the labor, materials and supplies to complete the Work, the Contract Sum as stated on the Proposal. Any required down payment is due as of the signing of this Agreement, the balance to be paid in ONE portion(s) within seven (7) days of the Contractorâ€™s providing of notice of substantial completion of the Work, either by letter or by invoice to the Owner. Owner acknowledges that this Agreement is for a “lump-sum” and no reduction in pricing, rebates, or early return of equipment or other event which reduces the costs for Contractor of carrying out the Work shall adjust the Contract Price, unless otherwise agreed in writing pursuant to Section 6 of this Agreement.
4. Financing: The Owner shall be required to provide the Contractor with adequate assurance of its ability to perform its obligations under this Agreement to make payment of the full contract price. The Contractor may require, at any time during the Term, that the Owner provide a surety to this Agreement to ensure due payment upon completion of the Work. If Owner cannot provide financing documentation or other adequate assurances of ability to make payment to the Contractor within ten (10) days of the signing of this Agreement, the Contractor may, at its option, cancel its remaining obligations under this Agreement causing it to become thereafter null and void and retain the down payment submitted pursuant to paragraph three (3), as liquidated damages.
5. Supervision and Direction of Work: The Owner herein agrees that the direction and supervision of all the Work, including services performed by laborers, subcontractors, material providers, or otherwise, shall rest exclusively with the Contractor. Owner acknowledges and agrees that Contractor shall be entitled to utilize subcontractors and other skilled contract labor in order to complete any portion of the Work hereunder. In the event that Owner has an issue or concern with: (a) any person performing the Work, (b) the progress of the Work, (c) the quality of the Work, or (d) the cleanliness of it will make written notification to the Contractor at its address herein, at least 48 hours prior to termination of the contract or commencement of any legal action.
6. Changes or Alterations; Change Orders: Any and all changes, alterations, additions, subtractions or alternatives which result in a departure from the original Specifications shall be in writing, signed by the Owner and delivered to the Contractor, marked as a Change Order. Contractorâ€™s failure to preserve a Change Order in writing shall not affect Contractorâ€™s right to obtain payment therefore.
7. Substantial Completion: The Owner shall receive notice of substantial completion of the Work from the Contractor , either by letter or invoice upon Contractorâ€™s determination that the premises at the Site are satisfactory for inhabitation or its other intended uses by the Owner and that the Work is 90% complete. Owner shall have seven (7) days to provide a “punchlist” of incomplete items which need to be completed before final completion. If Owner has outlined “punchlist” items, such items will not affect substantial completion and final CJ DELERY AGREEMENT – PAGE 1 of 3payment shall be due minus a fair amount to be held as retainage by the Owner for the value of the “punchlist” items as agreed upon in writing by the Contractor and the Owner.
8. Final Completion: The Owner shall receive notice of final completion of the Work from the Contractor upon Contractor’s determination that the entirety of the Work has been sufficiently completed. The Owner shall have seven (7) days from receipt of notice of completion to challenge final completion If no challenge has been brought by the Owner within seven (7) days the Owner accepts the Work as sufficiently finished and completed to the Owner’s satisfaction. If a challenge is brought, Contractor shall provide an independent inspector to review the Work. If the inspector agrees that the Work has reached final completion, final payment is due and the Owner shall additionally be liable for and make payment for the full cost of the inspection. In the event that the inspector does not agree that final completion has been reached, the Contractor shall be obligated to complete the incomplete items and upon completion final payment shall be due. Final payment shall constitute acceptance of the Work as sufficiently completed unless payment is made in protest of defects to a separate escrow account as agreed upon by the Parties.
9. Warranty: The Contractor warrants its work for a period of twelve (12) months beginning at the date of substantial completion as determined by Contractor. Contractor does not provide and specifically waives any implied warranty for fitness of a particular purpose unless that purpose has been made known to the Contractor and the Contractor agrees to provide a specific service in satisfaction of that purpose as approved in writing.
10. Late Charge and Interest on Delinquent Payments: Should the Owner fail to make payment as agreed herein, or fail to pay for any change, alteration or extra as provided herein, said delinquent payments or any unpaid portion thereof shall be subject to a daily late charge in the amount of two hundred no/100 ($100.00) dollars and interest calculated at the rate of ten (18%) per annum, calculated and compounded daily, until paid, and the Owner agrees to pay said late charge and interest to the Contractor or its assigns made in writing.
11. Attorneys Fees: If the Contractor is required to hire an attorney to enforce this contract, or to represent itself in any capacity with any relation to this Contract, the Owner agrees to pay the Contractorâ€™s attorneys fees when the Contractor is a prevailing party.
12. Indemnification: To the fullest extent permitted by law, the Owner shall indemnify, defend and hold harmless the Contractor and its agents, subcontractors, members and employees, from and against any and all claims, damages, losses and expenses, including but not limited to claims related to attorneys fees, arising out of or related to the Work, including, but not limited to, any and all claims, damages, losses and expenses caused in whole or in part by negligent or wrongful acts or omissions of, or a breach of this Agreement by, the Contractor, any of its subcontractors, anyone employed by them and/or anyone whose acts they are legally responsible.
13. Termination by Contractor: In the event that (1) the Work be stopped by any authority for a period of twenty (20) days or more, (2) the Work be stopped through the act, omission, or neglect of the Owner for a period of ten (10) days in response to an issue which requires the Ownerâ€™s response, (3) the Work be stopped by any Act of God, unforeseeable event, or latent and unavoidable issue, (4) Owner interferes with Contractorâ€™s Work or creates circumstances which make the Contractorâ€™s Work more expensive or more difficult to complete OR (5) Owner fails to pay the Contractor any payment when due, then the Contractor may stop Work and/or terminate the Contract and recover from the Owner payment for all Work already executed, all amounts to be charged during the remainder of the Term, plus any loss sustained, including lost profits, damages, penalties and fees granted by this Agreement.
14. Termination by Owner: The Owner may terminate this Agreement if the Contractor is guilty of Substantial Breach of a provision of the Agreement. Substantial Breach is defined as either (1) Contractorâ€™s failure to remedy a flaw or issue with the Work, within ten (10) days after written notice of said flaw or issue is provided by the Owner, or (2) Contractor causing material damage to the premises at the Site by its own negligence which the Contractor has been given written notice of and has not or cannot remedy within five (5) days. When a Substantial Breach occurs, the Owner may terminate this Agreement with Contractor only after elapse of Contractorâ€™s cure period and written notice of default has been delivered to Contractor, and five (5) additional days elapse without corrective action by the Contractor.
15. Insurance: Contractor shall provide and pay for any and all coverage and insurance, required in writing, because of the performance of the Work. Owner may be billed for any costs associated with necessary insurance.
16. Notices: All notices required or permitted under this Agreement shall be in writing and personally delivered or mailed, by certified mail, return receipt requested and addressed to the addresses stated on the Proposal. Notice shall be deemed delivered at the earlier of (a) actual delivery; or (b) the refusal of any parcel by any party; or (c) the failure of any party to claim any parcel:
17. Arbitration: All disputes hereunder shall be resolved by binding arbitration in accordance with the applicable rules of the American Arbitration Association. The parties shall split the costs of Arbitration, including the costs for the initiation of such Arbitration proceeding which shall be furnished to the filing party within ten (10) days after the respondent receives official notification of the proceedings. The Arbitration shall be held in New Orleans, Louisiana. The laws of the State of Louisiana shall govern all terms of this Agreement.
18. Notice of Lien Rights: The Owner of residential property located at the address shown on the Proposal acknowledges that Contractor has delivered this notice to me, the receipt of which is accepted, signifying my understanding that said contractor is about to begin improving my residential property according to the terms and conditions of a contract, and that in accordance with the provisions of law in Part I of Chapter 2 of Code Title XXI of Title 9 of the Louisiana Revised Statutes of 1950, R.S. 9:4801, et seq.: CJ DELERY AGREEMENT – PAGE 2 of 3(1) A right to file a lien against my property and improvements is granted to every contractor, subcontractor, architect, engineer, surveyor, mechanic, cartman, truckman, workman, laborer, or furnisher of material for the improvement or repair of my property, for the payment in principal and interest of such work or labor performed, or the materials, machinery or fixtures furnished, and for the cost of recording such privilege; (2)That when a contract is unwritten and/or unrecorded, or a bond is not required or is insufficient or unrecorded, or the surety therefor is not proper or solvent, I, as owner, shall be liable to such subcontractors, materialmen, suppliers or laborers for any unpaid amounts due them pursuant to their timely filed claims to the same extent as is the herein-above designated contractor; (3)That the lien rights granted herein can be enforced against my property even though the contractor has been paid in full if said contractor has not paid the persons who furnished the labor or materials for the improvement; AND (4)That I may require a written contract, to be recorded, and a bond with sufficient surety to be furnished and recorded by the contractor in an amount sufficient to cover the cost of such improvements, thereby relieving me, as owner, and my property, of liability for any unpaid sums remaining due and owing after completion to subcontractors, journeymen, cartmen, workmen, laborers, mechanics, furnishers of material or any other person furnishing labor, skill, or material on the said work who record and serve their claims in accordance with the requirements of law.
19. General Provisions: In addition, the following general provisions will apply: (1) All work shall be completed in a workmanship like manner; (2) Contractor shall not be liable for any delay due to circumstances beyond its control; (3) Contractor is an independent contractor and not an employee of the Owner; (4) Any changes to this Agreement must be in writing signed by both Contractor and Owner; (5) Owner is responsible for all personal property at the Site, and Contractor will not be held liable for any personal property damaged, stolen, lost and/or otherwise affected during the Term; (6) Contractor shall not be liable for any normal negligence which would traditionally be covered by a Builderâ€™s Risk Policy and Contractor encourages Owner to have such a policy; (7) Contractor shall not be liable for damages caused to adjoining, adjacent, or public properties, which are not principally caused by the actions of the Contractor or those which it has contracted and/or employed; (8) This Agreement may be filed and recorded with the County in which the Work is to be completed; (9) The Contractor provides notice that this property may be liened for failure to pay the Contractor, and Owner agrees that it shall be liable for any and all attorneysâ€™ fees and filing costs of said lien.
20. Merger and Entire Agreement: This Agreement and any Exhibits, Schedules, Riders or otherwise attached hereto, set forth all the covenants, promises, agreements, conditions, and understandings between the Parties concerning the entirety of their Agreement and there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them other than are herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change, or addition to this Agreement shall be binding upon Contractor or Owner unless presented in writing and signed by them. Owner agrees that Contractor and its agents have made no representations or promises with respect to any agreement between the Parties except as herein expressly set forth.
21. Severability: If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, then that provision shall be fully severable and the other provisions shall remain in full force and effect.