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1. Nature of Work. Frost Roofing, Inc. (FRI) shall furnish the labor and material necessary to perform the work described herein or in the referenced contract documents. FRI does not provide design, engineering, consulting or architectural services. It is the Owner’s responsibility to retain a licensed architect or engineer to determine proper design and code compliance, including a determination as to whether and what type of a vapor retarder is needed. If plans, specifications or other design documents have been furnished to FRI, Customer warrants that they are sufficient and conform to all applicable laws and building codes. FRI is not responsible for any loss, damage or expense due to defects in plans or specifications or building code violations unless such damage results from a deviation by FRI from what is specified. FRI is not responsible for condensation, moisture migration from the building interior or other building components, location or size of roof drains, adequacy of drainage, ponding on the roof, structural conditions or the properties of the roof deck or substrate on which FRI’s roofing work is installed.
2. Wind Loads or Uplift Pressures. Design Professional is responsible to design the work to be in compliance with applicable codes and regulations and to specify or show the work that is to be performed. FRI is not responsible for design, including calculation or verification of wind-load design. To the extent minimum wind loads or uplift pressures are required, FRI’s bid is based solely on manufacturer’s printed test results. FRI itself makes no representation regarding wind uplift capacity and assumes no liability for wind uplift.
3. Deck. Customer warrants that structures on which FRI is to work are in sound condition and capable of withstanding roofing construction, equipment and operations. FRI’s commencement of roof installation indicates only that FRI has visually inspected the surface of the roof deck for visible defects. FRI is not responsible for the structural sufficiency, quality of construction (including compliance with FMG criteria), undulations, fastening or moisture content of the roof deck or other trades’ work or design and their effect on the roof.
4. Concrete Decks. In the event that roofing is to be installed over a concrete or other wet deck or substrate, the determination as to when the concrete or wet substrate is sufficiently cured and dried so that roof materials can be installed without potential future adverse effect shall be made by the General Contractor in consultation with the concrete subcontractor, concrete manufacturer and design professional. FRI is not responsible to test or assess moisture content of the deck or substrate.
5. Deck repairs. Any work required to replace rotten or missing wood or deteriorated decking shall be done on a labor and material or unit price basis as an extra unless specifically included in the scope of work.
6. Customer Representations. Customer acknowledges that FRI has disclosed to it that the installation of a ballasted membrane roof will result in additional weight of at least 10 pounds per square foot plus the weight of the insulation on the structure being covered. Customer warrants to FRI that the building upon which the project is to be completed has adequate strength and structural integrity sufficient to support the installation of a ballasted roof. Customer agrees that FRI shall not be responsible for any pre-installation structural examination or assessment and that FRI shall not be responsible for any defects or weakness in the supporting beams, joists or members of any building or its underlying decking. Customer agrees that FRI shall not be responsible for and shall be held harmless against any damages to Customer’s building, its contents or its occupants by reason of FRI’s work on the Project which are caused wholly or in part by any deficiencies in such building structure.
7. Scheduling, FRI will schedule the work required to complete the Project after acceptance of this Contract by Customer. Frost Roof shall not be required to order materials or commence work until (a) all specifications and plans affecting the Project have been finally approved by Customer, and (b) FRI’s shops drawings have been approved by Customer and all other appropriate parties.
8. Permits. Any required governmental permits or approvals for the Project shall be the responsibility of Customer, and if required, they shall be obtained prior to the commencement of FRI’s work on the Project. FRI shall not be required to perform work at the Project site in the absence of any such required approvals or permits.
9. Changes. All changes in the specification of the Project, or on the face of this proposal, set forth in this Contract shall be made by written change order, signed by Customer and FRI. Such change order shall specify the additional or different work to be done, the materials to be supplied and FRI’s additional charges. Under no circumstances shall FRI be required to proceed with any requested changes unless it shall first receive a written change order from Customer. Any loss or damage to Customer arising as a result of FRI not proceeding prior to the receipt of such written change order from Customer shall be the sole responsibility of Customer.
10. Extra Work. Any penetrations through the roof to be installed by FRI requested by Customer which were not shown on the plans provided to FRI, or stated on the face of this proposal, prior to the execution and delivery of this contract shall be considered an order for extra work and FRI shall be compensated for any additional labor and material costs at it standard rates. FRI is not responsible for any changes caused by other parties. Any repair work at the Project necessitated by such damage shall be deemed an order for extra work and FRI shall be compensated for any such labor and material cost. The contract price is based upon FRI’s completion of the Project during regular working hours. If Customer requests that work be performed on the Project outside of FRI’s regular working hours, such request may only be implemented by a written change order agreed to by both parties.
11. Damages and Delays. Fri will not be responsible for damage done to FRI’s work by others including damage to temporary tie-offs. Any repairing of the same by FRI will be charged as an extra. FRI shall not be liable for liquidated or delay damages due to a delay in completion of the Project unless the delay was caused by FRI. FRI shall not be responsible for loss, damage or delay caused by circumstances beyond its reasonable control, including but not limited to acts of God, accidents, snow, fire, weather, vandalism, regulations, strikes, jurisdictional disputes, failure or delay of transportation, shortage of or inability to obtain materials, equipment or labor. In the event of these occurrences, FRI’s time for performance under this proposal shall be extended for a time sufficient to permit completion of the Work.
12. Right to Stop Work. The failure of Customer to make payment to FRI when due shall constitute a material breach and shall entitle FRI, at its discretion, to terminate this Contract, or suspend all work and shipments, including furnishing warranty, on the Project until such time as full payment is made, or take any other legal action FRI deems appropriate. Regardless of any action taken by FRI, Customer shall not be released from its obligation to FRI pursuant to paragraph 26 of these Terms and Conditions. If work on the Project is suspended, the agreed time for FRI to complete the Project shall be extended for a period equal to the time during which work on the Project was suspended; and the Contract price to be paid Contractor shall be increased by the amount of FRI’s reasonable costs of shutdown, delay and start up.
13. Work Conditions. FRI shall not be required to commence or perform its work on the Project until adjacent or underlying areas are acceptable to FRI and sufficient areas are ready to allow continuous work until the Project is completed. FRI shall have no responsibility for the work of other parties and all framing and masonry pertinent to the Project must be erected plumb and straight in accordance with working details and specifications prepared or approved by FRI. FRI shall not be required to perform work on the project under conditions which are general unacceptable according to standard practices, including conditions contrary to manufacturer’s instructions or adverse weather conditions. FRI shall not be required to provide, install or erect temporary weather protection to facilities in order to maintain continuous work or to comply with any schedule for the completion of the work. Customer shall not charge FRI for its use of telephone, electric lights, watchman’s service, sanitary facilities or temporary structures at the Project site, or any other general expenses of Customer, whether or not related to the Project.
14. Availability of Site. FRI shall be provided with direct access to the work site for passage of trucks and materials and direct access to the roof. FRI shall not be required to begin work until underlying areas are ready and acceptable to receive FRI’s work and sufficient areas of roof deck are clear and available and free from snow, water or debris to allow for continuous full operation. The expense of any extra trips by FRI to and from the job as a result of the job not being ready for the Work after FRI has been notified to proceed will be charged as an extra.
15. Existing Conditions. FRI is not responsible for leakage through the existing roof or other portions of the building that have not been reroofed by FRI.
16. Safety. Owner warrants there will be no live power lines on or near the roof servicing the building where FRI will be working and that Owner will turn off any such power supplies to avoid an electrocution risk to FRI’s employees. FRI’s price is based upon there not being electrical conduit or other materials embedded within the roof assembly or attached directly to the underside or topside of the roof deck upon which FRI will be installing the new roof. Owner will indemnify FRI from personal injury and other claims and expenses if Owner fails to turn off power so as to avoid injury to FRI’s personnel or resulting from the presence of concealed electrical conduit and live electrical power. FRI is not responsible for costs of repair or damages, including disruption of service, resulting from damage to undisclosed or concealed electrical or other utility lines. Owner shall shut down roof located electronic equipment that emits or receives radio frequency waves while roofing contractor is to be working on the roof so that roofing personnel will not be subject to radio frequency waves or electromagnetic radiation while working on the roof and shall indemnify and hold RRC and its personnel harmless from any personal injury claims resulting from a failure by Owner to do so. FRI is not responsible for the safety of person on the roof other than its own employees. Owner and General Contractor agree to indemnify and hold harmless, including attorney’s fees, from claims for personal injury by persons or entities whom Owner or General Contractor have allowed or authorized to be on the roof.
17. Materials. All materials shall be furnished in accordance with the respective manufacturers, published tolerances for color, variation, thickness, size, finish, texture and performance standards. FRI is not responsible for the actual verification of technical specifications of product manufacturers; i.e., R-value or ASTM or UL compliance, but rather the materials used are represented as such by the material manufacturer.
18. Asbestos, Toxic, and Hazardous Materials. Unless specifically set forth in any applicable Scope of Work and then only to the extent set forth therein, this Contract assumes that the project does not involve FRI’s contact with or removal of asbestos or other toxic or hazardous materials. In the event that asbestos, material containing asbestos or any other hazardous toxic materials are discovered during FRI’s work on the Project, FRI reserves the right (i) suspend its work on the Project for a reasonable period of time to permit Customer to engage a qualified firm to remove and dispose of the asbestos or other toxic hazardous materials from the Project site, or (ii) to terminate this Contract and receive payment for its work on the Project to date of termination. Customer acknowledges that FRI is not the owner or generator of any asbestos or other hazardous or toxic materials which may be found at the Project location. Customer acknowledges that FRI shall not be responsible for any claims, demands or damages arising out of the removal of asbestos or any other hazardous or toxic materials from the Project site and agrees to release, indemnify, defend and hold harmless FRI from and against damages, losses, claims, demands or lawsuits arising out of or relating to the presence, removal or disposal of asbestos or any other hazardous or toxic materials from the Project site.
19. Fumes and Emissions. Customer acknowledges that odors and emissions from roofing products will be released as part of the roofing operations to be performed by FRI. Customer shall be responsible for interior air quality, including controlling mechanical equipment, HVAC units, intake vents, wall vents, windows, doors and other openings to prevent fumes and odors during the application process. Some people are more sensitive to these emissions than others Customer shall hold FRI harmless from claims from third parties relating to fumes and odors that are emitted during the normal roofing process.
20. Microbiological Contaminants. Customer assumes all responsibility for the removal of moisture sources that may result in the growth or re-growth of microbiological contaminants, including but not limited to mold and fungus. FRI assumes no liability or responsibility for the removal of microbiological contaminants that may be present anywhere on the Customer’s property, whether known or unknown by either the Customer or FRI. It is further clarified that customer agrees to indemnify FRI for continued microbiological contamination that may occur due to the failure to remove the actual source of moisture causing said microbiological contamination. The removal of the source of moisture is the responsibility of the Customer.
21. Insurance. FRI shall carry worker’s compensation, automobile and commercial general liability (bodily injury and property damage) insurance. FRI will furnish a Certificate of Insurance, evidencing the types and amounts of its coverages, upon request. Customer shall purchase and maintain builder’s risk and property insurance, including the labor and materials furnished by FRI, covering fire, extended coverage, malicious mischief, vandalism and theft on the premises to protect against loss or damage to material and equipment and partially completed work until the job is completed and accepted. Moneys owed FRI shall not be withheld by reason of any damage or claim against FRI covered by liability or property damage insurance maintained by FRI or claims covered under builder’s risk insurance.
22. Additional insured. If Customer requires and FRI agrees to name Customer or others as additional insureds on FRI’s liability insurance policy, Customer and FRI agree that the naming of customer or others as additional insureds is intended to apply to claims made against the additional insureds to the extent the claim is due to the negligence of FRI and is not intended to make FRI’s insurer liable for claims that are due to the fault of the additional insured.
23. Payment. Customer shall pay the Contract price plus any additional charges for authorized changes and all applicable taxes within ten (10) days after presentation of FRI’s statement, invoice or bill for materials delivered to the Project location or suitably stored for use at the Project and for labor performed during the preceding month. All sums not paid when due shall earn interest at the rate of 1-1/2% per month. FRI shall be entitled to recover from Customer all costs of collection incurred by FRI, including attorney’s fees, resulting from Customer’s failure to make proper payment when due. FRI’s entitlement to payment is not dependent upon criteria promulgated by Factory Mutual Global, including wind uplift testing.
24. Lien. FRI shall be entitled to file a lien in the event that any payment is not paid when due.
25. Warranty. FRI warrants to Customer for a period of two (2) years from substantial completion of the Reroof or New Roof Installation Project, that the Project shall have been completed in a good and workman like manner according to standard practices.
All materials furnished by FRI are sold and installed only with applicable manufacturer’s warranties. Manufacturer’s warranties shall be furnished to the Customer only if so provided in the specifications for the Project or if the manufacturer regularly extends a written warranty applicable to the materials used in the Project. It is expressly agreed that in the event of any defects in the materials furnished pursuant to this Contract, Customer shall have recourse only against the manufacturer of such materials in accordance with their warranties. In no event, including any claim for negligence, shall FRI be liable for any incidental or consequential damage arising out of any labor, materials, or workmanship claimed to be defective. Under no circumstances shall FRI be liable for any damage to Customer’s building, its contents, or any of the businesses located in it. FRI’s sole responsibility under the Guarantee shall be to inspect the Project and to furnish the materials and labor necessary to make the repairs required by any defects in its workmanship.
THE GUARANTEE PROVIDED BY FRI AND ANY APPLICABLE MANUFACTURERS’ WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES FOR LABOR OR FURNISHED MATERIALS, EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE SPECIFICALLY DISCLAIMED.
A manufacturer’s warranty shall be furnished to Customer if a manufacturer’s warranty is called for on the face of this proposal.
26. Termination fee. In the event that Customer shall cancel or otherwise terminate this Contract for any reason without FRI’s written consent within 20 days prior to scheduled commencement of the Project by FRI or subsequent to such commencement, then FRI shall be entitled to a minimum termination fee in an amount equal to the agreed Contract price less an amount equal to the Project’s cost of materials if the Project were completed.
27. Dispute Resolution. If a dispute shall arise between FRI and Customer with respect to any matters or questions arising out of or relating to this Agreement or the breach thereof, FRI and Customer will seek to mediate the dispute. If mediation is not successful, arbitration shall be administered by and conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association unless the parties mutually agree otherwise. This Agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgement may be entered upon it in any Court having jurisdiction thereof. Any legal claim against FRI alleging any breach of this contract or negligence by FRI must be initiated no later than two (2) years after FRI performed the roofing installation covered by this contract. Collection matter may be processed through litigation or arbitration at the discretion of FRI. |