TERMS AND CONDITIONS
(Revised as of November 18, 2020)
Welcome to www.vcgfl.com/GCA which is owned and operated by Venture Construction Group of Florida, Inc. The below terms and conditions are a material part of the General Contractor Agreement signed by Owner (“Agreement”). These terms and conditions, as amended by Contractor from time to time, are specifically incorporated into the Agreement.
14. Written Waiver; Payment Schedule. Per the provisions of Sections 4, 5 and 6 above, it is the requirement that the full (100%) amount of any payments made by Insurance Company, mortgage company or other third-party for Services and/or Supplemental Work are immediately due, owing and payable to Contractor. However, in any instance where those provisions have been waived by Contractor, in writing, then all payments to Contractor are due in accordance with this schedule, which requires that: (a) an initial payment of 30% of the Contract Amount shall be paid to Contractor upon receipt and clearance of the Contract Amount; (b) a second payment of 30% of the Contract Amount shall be paid to Contractor upon the delivery of materials to Contractor or the location where the Services are to be rendered or performed (“Second Payment”); (c) a third payment of 30% of the Contract Amount shall be paid to Contractor upon the completion of 50% of the Services to be provided under the Agreement (“Third Payment”); (d) a final payment of 10% of the Contract Amount shall be paid to Contractor upon the Substantial Completion of the Services to be provided under the Agreement (“Final Payment”). Substantial Completion is achieved when Owner takes possession of materials and occupies Owner’s premises (“Substantial Completion”). Owner shall take all steps to furnish and ensure that immediate Final Payment is made to Contractor upon the Substantial Completion of the Project. “Contract Amount” is defined as the sum total of: (a) Owner’s insurance deductible; (b) all insurance proceeds tendered by Insurance Company after all reasonable measures have been exhausted concerning the Claim (except for business interruption coverage, contents coverage and other coverages that are entirely unrelated to construction); and (c) all Additional Work.
15. Notices. All notices or communications required hereunder shall be written and delivered in person, by registered mail, or express overnight courier, at the recipient’s address set forth above or such other address provided, in writing, by a Party.
16. Costs and Supplements. Contractor’s entitlement to payment for its work includes and is comprised of, but is not limited to Services, Additional Work and Supplemental Work, and any overhead and/or profit related to providing Services, Additional Work and Supplemental Work. Any supplemental Services or Supplemental Work, additional work or cost increases approved by Insurance Company, as well as Additional Work, shall become a part of this Agreement, and subject to its terms and this Agreement.
17. Limitations on Liability. Contractor shall not be liable for failure of performance due to labor controversies, strikes, fires, weather, and inability to obtain materials from usual sources, or any other circumstances beyond the control of the company whether of a similar or dissimilar nature. Owner agrees that Contractor shall not be liable for incidental or consequential damages under any circumstances whatsoever. Owner and its heirs, successors, legal representatives and assigns hereby release Contractor from any and all liability whatsoever in connection with this Agreement and any Services, Additional Work and Supplemental Work performed in relation to this Agreement. The scope of this release specifically includes Contractor’s affiliates, business interests, subsidiaries and/or corporations including, without limitation, their representative managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, and representatives (including attorneys), together with any and all other persons, firms and/or corporations who are or might be liable. The scope of this release shall also include, but not be limited to, Contractor’s own negligence, as well as any and all obligations, payments, claims, liabilities, demands, suits, and causes of action of every nature and kind, whether vested or contingent, accrued or unaccrued, known or unknown, in law or in equity, matured or unmatured, whether or not such claims were or could have been heretofore brought or raised, that arise from, pertain, relate or refer to this Agreement. Owner and its heirs, successors, legal representatives and assigns further agree to defend, hold harmless and to release Contractor and its affiliates, business interests, subsidiaries and/or corporations including, without limitation, their representative managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, and representatives (including attorneys), together with any and all other persons, firms and/or corporations who are or might be liable, from and against any and all claims and causes of action of every kind arising from, relating or pertaining to this Agreement. To the full extent permitted by law, Owner hereby agrees to and shall fully indemnify Contractor, along with its officers, directors, agents and employees, from any and all suits, actions, claims, losses, damages, costs, judgments or expenses of whatever nature, name and description, specifically including but not limited to claims allegedly based Contractor’s own negligence, which may arise out of or are in any way related to or derive from this Agreement. The monetary extent of Owner’s indemnification is to be 95% of the Contract Amount and bears a reasonable commercial relationship to this Agreement and all related agreements, and is hereby incorporated by reference into all project specifications or bid documents affiliated with this Agreement, if any.
18. Additional Representations and Acknowledgements. Owner represents that Owner owns the premises and/or property on which the Services or Additional Work are to be performed. Owner shall identify boundary lines and Owner shall be solely responsible for obtaining any and all necessary zoning approvals and variances before commencement of work by Contractor. Contractor shall comply with all local requirements for building permits, inspections, and zoning. All surplus material shall remain the sole property of Contractor. During work, Contractor may use Owner’s utilities and all charges shall be Owner’s responsibility. If Contractor is unable to complete the work for any reason, Contractor may assign its obligations hereunder to a third-party of its choice. All rights, remedies and privileges of Contractor hereunder shall inure to the benefit of and are enforceable by its assignees. Owner and each co-signer hereby waive as against any assignee of Contractor, all claims and defenses relating to quality of work or product, whether now or hereafter existing of Owner against Contractor, except claims and defenses existing during the terms of any warranties hereunder. Owner agrees to execute all other documents necessary for Contractor to carry out the terms of this Agreement and/or any and/or comply with all applicable laws. Contractor may make minor variations in work or substitute material of equal or better quality without consent of Owner.
19. Authority to Bind / Joint and Several Agreement. Owner(s) by their signature on this Agreement certify that they have full and complete authority to bind Owner to this Agreement. Owner agrees that upon acceptance of this Agreement by Contractor, each of Owners shall be jointly and severally liable and that each is the agent of the other Owners for the purpose of binding each and all Owners, for all purposes including specifications, changes, work order changes, or Additional Work or adjustments to this Agreement.
20. Limited Warranty. Contractor warrants that material provided is of standard quality. Contractor will transfer to Owner all manufacturers’ written guarantees upon written request by Owner. Contractor warrants workmanship and materials for one year after date of Substantial Completion, only. Contractor will remedy substantial defects on written notice from Owner to Contractor within such one-year period. This warranty inures to the benefit of and is enforceable only by Owner, and is not otherwise transferable or assignable under any circumstances, unless otherwise agreed to by all parties in writing. This warranty shall not become effective unless and until this Agreement is paid in full. CONTRACTOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY AS TO FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY AS TO MERCHANTABILITY. THERE ARE NO IMPLIED OR EXPRESS WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF, EXCEPT THAT THIS AGREEMENT DOES NOT ALTER ANY EXPRESS OR IMPLIED WARRANTIES AVAILABLE FROM MANUFACTURERS. The manufacturer does offer a limited warranty on the materials sold, and any and all claims by Owner for breach of warranty of any type must be brought directly against the manufacturer. Owner hereby waives any and all claims for breach of warranty of any type against Contractor. Owner will be supplied with the warranty information from the manufacturer after full and complete payment under this Agreement. A specimen copy of the warranty by the manufacturer is available upon written request by Owner.
21. Assignment – Binding Nature. Owner may not assign this Agreement without consent of Contractor. Any such attempted assignment shall be void and of no legal effect. Contractor may freely assign all rights and obligations under this Agreement. This Agreement shall be binding on and inure to the benefit of Contractor’s respective successors, heirs and permitted assigns.
22. Default in Payment. In the event that Owner fails to pay or defaults as to any payment specified under this Agreement, charges shall be added from the date of said default at a rate of one and one-half percent (1.5%) per month (18% per annum) with a minimum charge of $2.00 per month, and if placed in the hands of an attorney for collection, all attorneys fees and legal filing fees shall be paid by Owner.
23. Waiver. Failure of Contractor to enforce any of the provisions of this Agreement shall not waive such provisions or the right of Contractor to thereafter enforce such provisions. Any consent or waiver of compliance shall be effective only if in writing, but shall not be deemed to extend beyond the particular subject matter thereof. All of Contractor’s remedies shall not be deemed to be exclusive, but shall be in addition to all other remedies available in equity or at law.
24. Acceptance. All orders are subject to acceptance by Contractor. This Agreement shall not bind Contractor unless accepted by Contractor at its corporate headquarters, and if Contractor declines such acceptance for any reason, all deposit monies paid shall be refunded to Owner in full, and Contractor shall have no further responsibility or liability hereunder. No work will be done or material furnished except as specified herein or otherwise agreed to in writing. Any modification to this Agreement, which changes the Services or work to be performed, materials to be supplied, costs or the estimated completion date, must be in writing and signed by the Parties.
25. Headings. The headings and captions to this Agreement are inserted for convenience of reference only and in no way define, describe, or limit the scope or intent of this Agreement or any of the provisions hereof. The terms “include,” “including” and like terms mean “including but not limited to”. The Parties acknowledge that they have reviewed this Agreement in its entirety and have had a full opportunity to negotiate its terms, and therefore waive all applicable rules of construction that would require that any provision of this Agreement should be construed against its drafter, and agree that all provisions of the Agreement shall be construed as a whole, according to the fair meaning of the language used.
26. Governing Law. This Agreement shall be governed, interpreted, enforced and resolved exclusively by the laws of Florida and in the state courts of Palm Beach County, Florida. With the sole exceptions of Contractor’s efforts to collect sums paid to Owner by Insurance Company and/or Owner’s mortgage company or a third party as set forth in Section 6. “Owner to Deliver Insurance Proceeds” and Section 22 “Default in Payment” of this Agreement between the Parties, each Party shall be responsible for payment of their own attorneys’ fees as to any other controversy or claim arising out of or relating to this Agreement, or its formation, and the interpretation, breach or enforcement thereof, and any action or proceeding commenced to enforce the provisions of this Agreement, notwithstanding any laws to the contrary. THE PARTIES HEREBY WAIVE TRIAL BY JURY FOR ANY DISPUTES THAT ARISE OUT OF OR OTHERWISE RELATE, PERTAIN OR REFER TO THIS AGREEMENT. As an initial step in resolving any dispute, the Parties must each designate an individual who is authorized to conduct “peer to peer” settlement communications with, by and between the principals of the other party, to be conducted by telephone, unless the parties mutually agree to meet in person to conduct such settlement communications. These peer to peer communications toward resolution must occur within 10 days of either party giving written notice of a dispute to the other party. Thereafter, the Parties may mediate any dispute prior to instituting legal proceedings against one another. Jurisdiction and venue shall lie and any litigation must be commenced in state court in Palm Beach County, Florida. Such remedies shall not be deemed to be exclusive for a breach, but shall be in addition to all other remedies available in equity or at law.
27. By signing any Change Orders, Addendums, Escrow Agreements, Certificates of Completion and/or the like (“Addendums”) subsequent to the Agreement, Owner represents, warrants and agrees that Contractor is not in breach or default in any respect under the Agreement (or, if any such breach or default exists, Owner hereby irrevocably and unconditionally waives the same). Furthermore, by signing such Addendums, Owner further agrees to withdraw, and/or stop pursuing, any and all administrative complaints that may have been filed against Contractor. Owner further agrees to remove any and all negative reviews by Owner of Contractor or Contractor’s employees published online. Owner further understands and agrees that this Section 27 is a material part of the Addendums. Owner further understands and agrees that Contractor will not perform any additional Services or Supplemental Work without such terms being included in the Addendums.