THIS DESIGN CONSULTATION & VALUE ENGINEERING AGREEMENT (“Agreement”) is made on this day by and between Wilmek Construction LLC (“Contractor”) and the customer purchasing services (“Owner”).
Witnessed, that Contractor and Owner, for the mutual exchange of consideration named herein, agree as follows:
TABLE OF ARTICLES
2. Scope of Work
3. Compensation & Payment
4. Change Orders
5. Contractor Services and Responsibilities
6. Owner’s Services and Responsibilities
7. Ownership of Work Product
8. Time for Performance
9. Dispute Resolution
10. Miscellaneous Provisions
Article 1 – General
1.0.1 The Owner and Contractor commit to at all times cooperate fully with each other and proceed on the basis of good faith to permit each party to realize the benefits afforded under this Agreement.
1.0.2 Owner desires to construct a custom residence (the “Project”) and desires the design consultation and value engineering services of Contractor, and therefore enters into this Agreement, which is based on the Owner’s Project Criteria set forth in Section 1.0.3.
1.0.3 The Owner’s design requirements for the Project are set forth in Exhibit A. If Owner has not yet developed any such design criteria, Contractor will assist Owner and help to:
(a) Identify or develop the documents that contain the Owner’s design requirements including any performance specifications.
(b) Identify or describe the size, location, dimensions, and other pertinent information for construction of the Project.
(c) Identify the Owner’s sustainable objectives for the Project, such as sustainability certification, benefit to the environment, enhancement to the health and well-being of building occupants, or improvement of energy efficiency.
(d) Identify Owner’s budget for the Work to be provided by the Contractor.
(e) Identify Owner’s desired design and construction milestone dates.
(f) Identify Owner’s desired fixtures and finishes.
Article 2 – Scope of Work
2.0.1 Contractor will facilitate the design process through consulting and value engineering consistent with Article 5 such that upon completion of Contractor’s services under this Agreement, Owner has a permittable set of plans and specifications for the Project.
Article 3 – Compensation & Payment
3.1.1 The Contract Price for this Agreement, subject to adjustment as set forth in Articles 3.2 and 4, is: $1.75per square foot for single story home or $2.25 per square foot for two story home; and a fixed nonrefundable Deposit fee of $5,000.00 which includes the cost of Contractor’s services hereunder and the services of design professionals.
3.1.2 The Contract Price shall be the full compensation due Contractor for the performance of all services set forth in this Agreement. The Contract Price shall be adjusted to reflect any additional services agreed upon by the parties after execution of this Agreement.
3.2.1 The Deposit fee set forth above shall be paid upon signing this Agreement. The above stated Contract Price is based upon Contractor’s estimate of square footage at the time of entry into this Agreement. Throughout the duration of this Agreement Contractor and Owner anticipate that estimated square footage could increase pursuant to changes in Owner’s Project Criteria, Article 4, or otherwise, in which case the Contract Price shall be adjusted upward. Contractorand Owner agree that the final Contract Price shall be determined at the completion of the services under this Agreement unless agreed otherwise by the parties and shall be paid by Owner to Contractor upon receipt of Contractor’s invoice. Following receipt of payment Contractor will provide Owner with the completed plans and specifications.
3.2.2 Payments due and unpaid by Owner to Contractor shall bear interest commencing five (5) days after payment is due at the rate of eighteen percent (18%) per annum, and such rate shall continue to apply post judgment until such time as all sums due Contractor are paid in full.
3.2.3 Owner agrees that Contractor’s services under this Agreement constitute an improvement to real property as that term is contemplated by Chapter 713, Florida Statutes, as amended, and that Contractor shall have construction lien rights against the subject real property if the sum due Contractor is not paid. Owner also grants Contractor the right to impose a lien upon documents, work product, photographs, video, samples, and other intangibles and materials coming into its possession to secure payment.
Article 4 – Change Orders
4.0.1 Any additional services must be set forth in a written Change Order.
4.0.2 A Change Order is a written order signed by the Owner and Contractor after execution of this Agreement indicating changes in the scope of the Work, the Contractor’s responsibilities set forth in Article 5, the Contract Price, and the time for performance.
Article 5 – Contractor Services and Responsibilities
5.1 Design Services
5.1.1 Contractor shall, consistent with applicable state licensing laws, provide consulting and value engineering services to Owner. Contractor will also engage, as agent for the Owner, architects and/or engineers or other design professional services as appropriate (the “Design Professionals”) to perform the actual design of the Project. Owner shall be entitled to reject Contractor’s Design Professionals selection as agent for the Owner, but only if such rejection is made in writing by Owner within two (2) days of entry into this Agreement. Owner understands that Contractor is simply acting as an intermediary in engaging the Design Professionals, and assumes no liability for the selection, supervision, and performance of the Design Professionals. Owner’s sole and exclusive remedy concerning the plans developed and services provided by the Design Professionals shall be against the Design Professionals, and not against Contractor.
5.2 Preliminary Services
5.2.1 As set forth in section 1.03, Owner may provide Contractor with Owner’s Project Criteria (as further defined below), describing Owner’s requirements and objectives for the Project. Owner’s Project Criteria may include conceptual documents, design specifications, design performance specifications and other technical materials and requirements prepared by or for Owner.
5.2.2 If Owner’s Project Criteria has not been developed prior to the execution of this Agreement, Contractor will assist Owner in developing Owner’s Project Criteria. If Owner has developed Owner’s Project Criteria prior to executing this Agreement, Contractor shall review and prepare a written evaluation of such criteria, including recommendations to Owner for different and innovative approaches to the design of the Project. The parties shall meet to discuss Contractor’s written evaluation of Owner’s Project Criteria and agree upon what revisions, if any, should be made to such criteria.
5.3 Schematic Documents
5.3.1 Contractor shall prepare schematic documents based on Owner’s Project Criteria and will provide these schematic Documents to the Design Professionals. The schematic design documents shall include design criteria, drawings, diagrams, material and finishes lists, and specifications, as appropriate, setting forth the requirements of the Project. The parties shall meet to discuss the schematic documents and agree upon what revisions, if any, should be made. Contractor shall perform such agreed upon revisions. Once the schematic documents are submitted to the Design Professionals Owner can still request revisions, but at such time those revisions will be made only following a Change Order pursuant to Article 4.
5.4.1 Based on Owner’s Project Criteria and the schematic documents, as each may be revised pursuant to Article 4, and following completion of the Design Professional’s services and an executed Construction Agreement, Contractor shall submit a proposal to Owner (the “Proposal”), which shall include the following unless the parties mutually agree otherwise:
(a) a proposed contract price in Exhibit B – Proposal, Drawings and Specifications for the construction of the Project.
(b) all other information necessary for the parties to enter into a construction agreement; and
(c) the time limit for acceptance of the Proposal.
The Proposal, and any ensuing construction contract price and, shall be subject to adjustment after issuance based upon newly discovered conditions, new information, Owner directed changes, and directions of the governing building authority, or the Design Professionals.
Article 6 – Owner Services and Responsibilities
6.1 Timely Performance
6.1.1 Owner shall throughout the performance of this Agreement, cooperate with Contractor. Owner shall perform its responsibilities, obligations, and services, including its reviews and approvals of Contractor’s submissions, in a timely manner so as not to delay or interfere with Contractor’s performance of its obligations under this Agreement. Timely performance under this provision shall mean either: (a) within the time specified by Contractor in the applicable communication, or (b) if Contractor specifies no time within the applicable communication, then expeditiously, so as not to interfere with or delay Contractor’s performance.
6.2 Owner’s Project Criteria
6.2.1 Owner shall provide Contractor with information as to Owner’s requirements for the Project, including design objectives and constraints, space, capability and performance requirements, security needs, flexibility and expandability, and budgetary limitations (“Project Criteria”). If Owner desires that Contractor assist Owner in developing such criteria as a negotiated additional service, Owner shall provide Contractor with its objectives, limitations and other relevant information regarding the Project.
6.3 Owner Provided Information
6.3.1 Owner shall provide, at its own cost and expense for Contractor’s information and use, the following, all of which Contractor is entitled to rely upon in performing its obligations hereunder:
(a) surveys describing the property, boundaries, topography, and reference points for use during construction, including existing services and utility lines.
(b) geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Project location.
(c) temporary and permanent easements, zoning and other requirements and encumbrances affecting land use or necessary to permit the proper design and construction of the Project.
(d) a legal description of the Project location;
(e) to the extent available, as built and record drawings of any existing structures at the Project; and
(f) to the extent available, environmental studies, reports and impact statements describing the environmental conditions, including, but not limited to any hazardous conditions in existence at the Project location.
Owner understands that Contractor is entitled to rely upon the information provided by Owner and shall have no duty to investigate the accuracy or completeness of the information.
Article 7 – Ownership of the Work
7.1 Work Product
7.1.1 All drawings, specifications and other documents, and electronic data furnished by Contractor to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Contractor shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights and/or patents, subject to the provisions set forth below.
7.2 Owner’s License
7.2.1 If Owner elects to proceed with construction of this Project through its employees, agents or third parties, then Contractor hereby grants to Owner a non-exclusive limited license to use the Work Product for those limited purposes only, and Contractor may terminate such license if misused under this section, or if Owner is otherwise in breach of this Agreement. Such license is also conditioned on the following:
(a) Use of the Work Product is at Owner’s sole risk without liability or legal exposure to Contractor or anyone working by or through Contractor including design professionals of any tier (collectively the “Indemnified Parties”). Owner shall defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys’ fees, regarding, arising out of or resulting from the use of the Work Product, whether caused in whole or in part by the Indemnified Parties. The monetary limit of this indemnity shall be the cost to construct the Project. Owner agrees that this limit bears a reasonable commercial relationship to this Agreement.
Article 8 – Time for Performance
8.0.1 The Work of Contractor hereunder shall commence within 10 days of this Agreement and is estimated to be completed within approximately 12 weeks, subject to increase due to changes in Project Criteria or the trigger of Change Orders.
Article 9 – Dispute Resolution
9.0.1 In the event Owner believes that Contractor has defaulted under this Agreement, Owner must provide Contractor written notice of the default within forty-eight (48) hours of the default, or said default is waived, and the notice must include the statement that it is “Notice of Default and Demand for Cure.” The written notice must give Contractor a minimum of 2 business days within which to begin the effort to cure the default.
9.0.2 The parties agree that any claim, dispute or controversy arising out of or relating to this contract, or the breach of this Agreement, that cannot be resolved through discussions by the parties and the aforementioned process shall be submitted to non-binding mediation administered by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association under its Construction Industry Mediation Rules then in effect. Any claim, dispute, or controversy arising out of or relating to this Agreement or breach thereof which has not been resolved by mediation shall be submitted to binding arbitration administered by the AAA pursuant to the Construction Industry Arbitration Rules then in effect and judgment on the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof.
9.0.3 Florida Law shall be applied by the mediator or arbitrator(s) in adjudicating any dispute.
9.0.4 Except to the extent a different venue is required by law, venue for any such mediation or arbitration shall be in Ocala, Florida.
9.0.5 Owner agrees that Contractor shall be entitled to join in any mediation or arbitration any third parties Contractor believes may be answerable to the Owner’s claims or defenses.
Article 10 – Miscellaneous Provisions
10.0.1 Integration. This Agreement represents the entire and integrated agreement between the parties and supersedes prior negotiations, representations or agreements, either written or oral. This Agreement may only be amended or modified by a written modification in accordance with Article 4.
10.0.2 Notice. Any notice that is required or contemplated by this Agreement shall be addressed to the address provided in the Project Information section on the first page of this Agreement and served by U.S.
Certified Mail, or by next day delivery by other common carrier provided that such alternate delivery method records/documents the date of delivery. Notice shall be effective on the date of delivery. However, notice shall be effective on the date sent if in addition to the original notice, an electronic copy of the notice is also sent by email to the email address provided in the Project Information section on the first page of this Agreement.
10.0.3 Assignment. Neither Contractor nor Owner shall without written consent of the other party assign, transfer, or sublet any portion or part of its obligations under this Agreement.
10.0.4 Governing Law. This Agreement shall be governed by the laws of the place of the Project, without giving effect to its conflict of law principles.
10.0.5 Severability. If any provision or any part of a provision of this Agreement shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to applicable laws by any authority having jurisdiction, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provisions or parts of the provision of this Agreement, which shall remain in full force and effect as if the unenforceable provision or part was deleted.
10.0.6 As used herein, the singular includes the plural, and vice versa.
10.0.7 The captions used in this Agreement have been inserted for convenience of reference only and shall not be considered in interpreting the substantive provisions of this Agreement.
10.0.7 Counter Parts. Any number of counterparts of this Agreement may be signed and delivered, each of which shallbe considered an original and all of which, together, shall constitute one and the same instrument. Counterpart signature pages transmitted via fax or e-mail shall be deemed to be originals for all purposes.
10.0.8 Both parties have carefully reviewed this Agreement and have had an opportunity for legal counsel to review thisAgreement. Therefore, the rule of construction that ambiguities are to be resolved against the drafting party shall not beemployed in interpreting this agreement or any exhibits or amendments hereto.
10.0.8 Binding. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, except as otherwise provided herein.
10.0.9 Waiver. The Contractor and Owner waive claims against each other for consequential damages arising out of or relating to this Agreement.
FLORIDA LIEN LAW DISCLOSURE
ACCORDING TO FLORIDA’S CONSTRUCTION LIEN LAW (SECTIONS 713.001–713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR PROPERTY OR PROVIDE MATERIALS AND SERVICES AND ARE NOT PAID IN FULL HAVE A RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR PROPERTY. THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS, SUB-SUBCONTRACTORS, OR MATERIAL SUPPLIERS, THOSE PEOPLE WHO ARE OWED MONEY MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE ALREADY PAID YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR PROPERTY. THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED TO PAY. TO PROTECT YOURSELF, YOU SHOULD STIPULATE IN THIS CONTRACT THAT BEFORE ANY PAYMENT IS MADE, YOUR CONTRACTOR IS REQUIRED TO PROVIDE YOU WITH A WRITTEN RELEASE OF LIEN FROM ANY PERSON OR COMPANY THAT HAS PROVIDED TO YOU A “NOTICE TO OWNER.” FLORIDA’S CONSTRUCTION LIEN LAW IS COMPLEX, AND IT IS RECOMMENDED THAT YOU CONSULT AN ATTORNEY.