Agreement for Construction Contract s1
Rev: 3-3-15
AGREEMENT FOR THE PURCHASE AND INSTALLATION OF FURNITURE, FIXTURES, EQUIPMENT AND ARTWORK
1. Parties. The parties to this agreement are:
Purchaser: The Most Reverend Joe S. Vasquez, Bishop of the Catholic Diocese of Austin and his successors in office whose address is 6225 US Highway 290 E, Austin, TX 78723, for the benefit of Parish (the Parish);
Email: ; and,
Seller: whose address is and email is .
2. Statement of Work.
A. Seller shall furnish all work, materials, supplies, labor, services and equipment required to provide the following furniture, fixtures, equipment or artwork: collectively, known as “FFEA.”
B. Seller shall design, acquire, make, manufacture, assemble, and install the FFEA in accordance with:
q (1) the Plans and Specifications prepared and dated .
q (2) the description in the attached Exhibit A.
C. Seller shall q deliver and install q only deliver the FFEA to the following location: within:
(1) q days after the Commencement Date, but not before .
(2) q the time and according to the schedule in the attached Exhibit B.
D. If Seller is to install the FFEA, Seller shall:
(1) be solely responsible for initiating, maintaining, and supervising all proper safety and health programs and precautions to protect: (i) the FFEA; and (ii) workers, any other persons, and the property of others at the site of installation;
(2) not load, unload, store, or permit any materials or other items to be loaded, unloaded or stored in a location or manner that endangers the safety of persons or the property at the site of installation;
(3) install the FFEA in accordance with all applicable codes and ordinances;
(4) be solely responsible for the installation of the FFEA including but not limited to providing all necessary equipment, labor, tools, lifts, anchors and scaffolding;
(5) be responsible for ensuring that anchorage used to install the FFEA is sufficient and suitable to support the FFEA, as well as determining that the support to which any anchorage is attached is suitable to support such achorage;
(6) at its own expense, acquire and maintain general liability insurance for $1,000,000 and worker’s compensation insurance in the statutory amount and provide evidence of such coverage to Purchaser upon request.
3. Commencement Date: The Commencement Date is the date Purchaser authorizes Seller to commence the Statement of Work described in Paragraph 2 after approving any shop drawings, measurements, color selections, samples and other items reasonably necessary for Seller to perform under this agreement.
4. Contract Amount. Purchaser will pay Seller $ (“Contact Amount”) for the delivery and, if applicable the installation of the FFEA in accordance with the description in Paragraph 2. The Contract Amount includes any and all applicable federal, state, and local taxes of any kind whatsoever. Purchaser is a charitable 501(c)(3) tax exempt organization and will provide Seller with tax exempt certificates upon request.
5. Payment of Contract Amount.
A. On or before the Commencement Date Purchaser will pay Seller ______% of the Contract Amount and will pay the balance to Seller within 30 days after Seller completes the Statement of Work described in Paragraph 2.
B. By providing written notice to Seller, Purchaser may withhold any payment, in whole or part, if Purchaser determines that any part of the FFEA or the installation of the FFEA is damaged, defective, or fails to meet the plans and specifications or other description provided under Paragraph 2. Provided that Seller promptly cures any such damage, defect, or failure, Purchaser will pay Seller any withheld amount within 7 days after the cure.
6. Warranty. Seller warrants that the FFEA and any installation of the FFEA shall be free of defects in workmanship and materials and will conform to Seller’s published specifications and advertisements for a period of ______years after the later of: (i) the date Seller completes the Statement of Work described in Paragraph 2; or (ii) the date Seller completes any curative work under Paragraph 5B. Promptly after receiving a notice from Purchaser of a claim under the warranty, Seller shall promptly repair or replace, at Seller’s option, any defect in materials and workmanship during the warranty period.
7. Title. Seller retains title to the FFEA until after delivery and any installation is complete. Seller shall be solely responsible for protecting the FFEA from damage until title transfers to Purchaser. Except as otherwise provided in this agreement, the party holding title bears the risk of loss or damage to the FFEA.
8. Permits. Seller shall, at its sole expense, be responsible for obtaining all necessary licenses and permits, and for complying with any applicable federal, state, and municipal laws, codes and regulations in connection with the delivery and, if applicable, the installation of the FFEA.
9. Special Provisions.
10. Indemnity. Seller shall indemnify and hold Purchaser and Parish harmless, as well as their officers, employees, agents, and volunteers, from and against all judgments, awards, claims, suits, attorney’s fees, and other expenses on account of any damage to property or injury, including death, to persons which may occur or be alleged to have occurred in connection with Seller’s performance of the Statement of Work described in this agreement. Seller assumes all risk of damage or injury (including death) to Seller's own property or person or to the property or person of Seller's employees from any cause whatsoever.
11. Delays, Right to Terminate, and Default.
A. If the Seller fails to timely deliver and, if applicable, install the FFEA, Purchaser shall be entitled to liquidated damages equal to $150.00 per day for any such delay. Liquidated damages under this paragraph may not exceed 30% of the Contract Amount. Because damage for delays are difficult to determine and measure, the daily delay charge is an estimate of reasonable expenses and costs for any such delay.
B. If the FFEA is to be delivered or installed as part of Purchaser’s construction or renovation of its facilities or properties, Purchaser may, for any reason, by providing written notice to Seller extend the period for delivery and any installation specified in Paragraph 2C. If Purchaser extends the period for delivery and any installation by more than 90 days, Purchaser shall pay Seller an amount equal to $150.00 per day for a delay in excess of 90 days. Liquidated damages under this paragraph may not exceed 30% of the Contract Amount. Because damage for delays are difficult to determine and measure, the daily delay charge is an estimate of reasonable expenses and costs for any such delay.
C. Notwithstanding any other provision in this agreement, either party may terminate this agreement for any reason by providing written notice to the other party and:
(1) if the terminating party is the Purchaser, the Purchaser shall promptly pay Seller: (i) fair compensation for all work completed and all costs incurred, net of salvage, in part performance of the incomplete portions of the work, but exclusive of overhead or profit on the incomplete portions of the work; and (ii) liquidated damages equal to 30% of such fair compensation; and
(2) if the terminating party is the Seller, the Seller shall: (i) promptly refund to Purchaser all amounts Purchaser paid to Seller through the date of termination; (ii) promptly pay Purchaser’s costs to find suitable replacement FFEA of similar quality and its costs for temporary accommodations until the replacement FFEA is delivered and installed; and (iii) liquidated damages equal to 30% of such additional costs Purchaser incurs. If Seller terminates under this provision, Purchaser may, at its option, retain any portion of the FFEA delivered to Purchaser and Seller shall be entitled to reduce the refund to Purchaser by a fair amount for the portion retained.
D. The remedies under Paragraphs 11A and 11B are the exclusive remedies for the parties for any delays in delivery or installation of the FFEA. If Purchaser does not timely pay Seller its compensation when due under this agreement, Seller may exercise any remedy at law to recover the unpaid compensation and any attorney’s fees associated with its collection of the unpaid compensation. If any other occurrence of default occurs that is not remedied under Paragraphs 11A, 11B, or 11C, within the time by which the maximum amount of liquidated damages under those paragraphs are obtained, the non-defaulting party may seek any remedy available at law and recover reasonable attorney’s fees.
E. The parties shall have a duty to mitigate any loss caused by the other party’s non-compliance.
12. Change Orders. Seller shall not perform any additional work or enter into any agreement to perform additional work or change the description of the FFEA or installation without the written consent of the individual executing this agreement on behalf of Purchaser or his successor if such individual is no longer acting in the capacity under which he or she signs this agreement.
13. Time of the Essence. Time is of the essence for the performance of this agreement. Strict compliance with the required times is required.
14. No Assignment. Neither party may assign this agreement without the written consent of the other party.
15. Governing Law and Venue. Texas law shall govern the validity, interpretation, and enforcement of this agreement. This agreement is entered into and performed in Travis County, Texas, without regard to where actual work is performed. The venue for any litigation with respect to this agreement shall be in Travis County, Texas.
16. Severability. If any clause in this agreement is found to be invalid or unenforceable by a court of law, the remainder of this agreement shall be not affected and all other provisions of this agreement shall remain valid and enforceable.
17. Third Party Beneficiary. The parties agree that the Parish is a Third Party Beneficiary to this agreement.
18. Entire Agreement. This agreement constitutes the entire agreement between the parties and may not be changed except by written agreement signed by Purchaser and Seller. A party’s oral statements or representations which are not expressed in this agreement are not binding on the parties.
PURCHASER: SELLER:
The Most Reverend Joe S. Vasquez,
Bishop of the Catholic Diocese of Austin
and His Successors in Office ______
By: By:
Name: Most Reverend Daniel E. Garcia Name:
Title: Auxiliary Bishop, Vicar General, Title:
and Attorney-in-Fact for the
Most Reverend Joe S. Vásquez
Date: Date:
Page 3 of 4