These General Terms and Conditions of Pacific Northern Environmental LLC., dba PNE CONSTRUCTION are incorporated into any of the following: a PNE CONSTRUCTION Agreement, a PNE CONSTRUCTION proposal, a PNE CONSTRUCTION quote, or any similar instrument that references these online terms and conditions (each an “Agreement”) and are between PNE CONSTRUCTION and the customer identified in the Agreement (the “Customer”).
1. Commencement and Completion of the Work
PNE CONSTRUCTION will commence the work described in the Agreement (the “Work”) within a reasonable period of time after the Agreement has been approved by both parties and Customer has given PNE CONSTRUCTION a notice to proceed. Contractor shall complete the work in an expeditious manner or as otherwise set forth in the schedule set forth in the Agreement, subject to unforeseen unavailability of necessary labor or materials, project architect delays, Customer delays, inclement weather, insufficient or unworkable drawings or specifications, changes in the scope of work, or other causes beyond Contractor’s control.
2. Contract Price
The Contract Price will be as stated in the Agreement and is exclusive of any sales tax or similar taxes. If the Contract Price is a fixed price, it shall be subject to modification as set forth in any change order. If the Contract Price is not a fixed price, then all work performed, and materials and equipment provided by PNE CONSTRUCTION for Customer under the Agreement, including Work included in any change order (together, “Work”) shall be billed to Customer on a time and materials basis, which shall be at PNE CONSTRUCTION’s then current standard rates for applicable labor, material, and equipment, which may change from time to time. Work or materials not covered under PNE CONSTRUCTION’s then current rate schedule shall be billed at a rate of cost plus fifteen percent (15%). Any daily sheets provided to Customer are for reference only and may be later modified by PNE CONSTRUCTION to correct certain matters such as overtime, job numbers, and other matters.
3. Payment Terms and Final Payment
Customer will pay PNE CONSTRUCTION amounts invoiced within 15 days following the presentation of the invoice without set off or reserve except as expressly set forth in the Agreement. Customer further agrees to pay to PNE CONSTRUCTION on all past due accounts an interest charge of one and one half percent (1 1/2%) per month on invoice balances. In the event of Customer’s failure to pay any amount due upon PNE CONSTRUCTION’s invoice(s) or in the event of Customer’s breach of this Agreement, Customer agrees to pay PNE CONSTRUCTION all reasonable attorney’s fees, collection fees, all costs and expenses incurred by PNE CONSTRUCTION in any legal action or collection efforts brought to collect unpaid invoice balances owed by Customer or to enforce this Agreement whether or not litigation is commenced.
Prior to making final payment, Customer may personally review the Work performed by PNE CONSTRUCTION and provide PNE CONSTRUCTION with a punch list of items which Customer believes need to be corrected or completed. The punch list shall be signed by Customer. There will be only one punch list. PNE CONSTRUCTION shall be given access and opportunity to perform all Work identified on the punch list. Customer shall not offset the cost of completing any Work stated on the punch list against any balance owed to PNE CONSTRUCTION, nor shall Customer contract with any alternative contractor for the performance or completion of Work within the scope of this Agreement, nor shall an owner or tenant occupy or use PNE CONSTRUCTION’s Work until and unless PNE CONSTRUCTION shall have been the first provided the notice and opportunity stated above. If Customer does contract with an alternate contractor to perform the punch list Work or otherwise completes any of the Work (or punch list items) without first affording the above-described opportunity to PNE CONSTRUCTION, or if an owner or tenant commences to use or occupy the space in which PNE CONSTRUCTION performed Work, Customer accepts all Work “as-is” and waives any claim against PNE CONSTRUCTION Upon PNE CONSTRUCTION’s completion or correction of the Work identified on Customer’s single punch list, any retainage or other amount withheld from final payment shall be paid within the next three (3) days to PNE CONSTRUCTION All further Work shall be performed as warranty work as provided for in Paragraph 6 of this Agreement.
4. Changes and Change Orders
Customer may request changes or modifications in the scope of Work. These requests must be documented in writing on a change order form prepared by PNE CONSTRUCTION and signed by authorized representatives of both parties to be binding on PNE CONSTRUCTION; provided that PNE Co may rely in good faith on an oral change order requested by Customer. If such change order does not include a fixed price, charges for the additional Work will be based on time and materials as described above. If conditions at the work site are encountered by PNE CONSTRUCTION are subsurface or otherwise concealed physical conditions or unusual conditions which differ materially from those indicated in the proposal for Work or any plans and specifications referenced in the Agreement, then PNE CONSTRUCTION will notify Customer within a reasonable period of time. Customer shall promptly, investigate such conditions and if such conditions do materially differ and cause an increase or decrease in PNE CONSTRUCTION’s cost of, or the time required for performance of any part of the Work, then an equitable adjustment shall be made with respect to the scope of the Work, compensation and/or time schedule. PNE CONSTRUCTION may suspend performance without penalty until an equitable adjustment is agreed upon. Unknown or unanticipated conditions or conditions differing from information provided by Customer, changes in laws or required standards, directions by other federal, state or local agencies, directions from Customer or Customer’s architect or designer, or other conditions encountered beyond PNE CONSTRUCTION’s control shall be considered a change requested by Customer.
PNE CONSTRUCTION warrants that all labor and materials will be paid for, and there will be no lien claimants upon the completion of the Work and final payment by the Customer. All Work will be performed in a commercially reasonable manner and there will be no defects in workmanship. PNE CONSTRUCTION will promptly return to the project and repair or replace, as necessary, any defect in workmanship at PNE CONSTRUCTION’s sole expense. PNE CONSTRUCTION’s warranty is for a period of twelve (12) months from the date of this Agreement, and thereafter expires even if a defect in the Work is discovered after the twelve (12) month period. Any claim or cause of action arising under the terms of this Agreement, including the warranty, must be filed in a court of competent jurisdiction within four (4) months from the expiration of this warranty, even if the basis for the claim is discovered after the warranty period. Any unresolved, unasserted or undiscovered claim or cause of action which is not filed within four (4) months of the expiration of this warranty is waived. Warranty work performed by PNE CONSTRUCTION does not extend the warranty. The warranty is void if a person or firm other than PNE CONSTRUCTION performs or re-performs any Work within the scope of this Agreement. This warranty is non-transferable. PNE CONSTRUCTION MAKES NO OTHER WARRANTIES AND ALL WARRANTIES, WHETHER IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CUSTOM AND USEAGE ARE HEREBY DISCLAIMED BY PNE CONSTRUCTION AND WAIVED BY CUSTOMER. Manufactured, consumer, or any other products or materials provided, which includes (without limitation) roofing materials, appliances, hardware, windows, heating and mechanical systems, fixtures, etc. are not separately warranted by PNE CONSTRUCTION. In the event that the Customer encounters a defect in a manufactured or supplied product, PNE CONSTRUCTION shall, during the warranty period, assist the Customer in securing repair or replacement of these products pursuant to the particular manufacturer’s or distributor’s warranty at no additional cost to PNE CONSTRUCTION. PNE CONSTRUCTION will assign all product and material warranties it receives to Customer.
6. Limitation of Liability
PNE CONSTRUCTION shall not be liable to Customer or any third parties for (a) consequential, special, incidental or indirect losses or damages including, without limitation, the loss of profits, loss of production, plant down-time, Customer’s liability to third parties or punitive damages; (b) losses or damages arising from any pre-existing condition at the work site or the acts of Customer and/or any third parties; (c) losses or damages arising from causes beyond PNE CONSTRUCTION’s control including, without limitation, war, riots, acts of governmental authorities, strikes or other labor difficulties, inclement weather, fires, floods and unavoidable casualties or delays in transportation; (d) losses or damages arising from the lack of identification or inaccurate identification of the Hazardous Waste or other materials; and (e) any other claims, losses or damages arising out of the Work except to the extent caused by PNE CONSTRUCTION’s sole negligence or breach of this Agreement.
7. Hazardous Waste
PNE CONSTRUCTION is not responsible for the discovery or removal of asbestos or other hazardous waste unless specifically set forth in the Agreement. If asbestos or other hazardous waste is discovered during the course of PNE CONSTRUCTION’s Work, PNE CONSTRUCTION shall promptly notify the Customer and the applicable governmental agency. It shall thereafter be the Customer’s responsibility to contact a certified hazardous waste removal company/contractor to perform all asbestos or hazardous waste removal.
8. Termination or Suspension
PNE CONSTRUCTION may terminate this Agreement or suspend its performance of Work in the event of Customer’s failure to timely pay amounts due PNE CONSTRUCTION or if customer breaches any provision of this Agreement and fails to remedy such breach(s) within one business day of PNE CONSTRUCTION notice to Customer of such breach(s). Customer shall be responsible for all costs and expenses incurred by PNE CONSTRUCTION relating to such termination or suspension. Standby costs, demobilization and mobilization costs incurred to remove personnel and equipment from the site and other costs incurred as a result of suspension or delay beyond the direct control of PNE CONSTRUCTION, shall be compensated by Customer in accordance with PNE CONSTRUCTION’s then current rate schedule.
Customer shall indemnify, defend and hold harmless PNE CONSTRUCTION from and against any and all loss, liability, claims, damages, fines, penalties, costs or expenses,(including defense costs and attorneys’ fees), incurred by PNE CONSTRUCTION or third parties arising from or in connection with any bodily injury, death, property damage or destruction, environmental release, impairment, pollution or condition, violation or alleged violation of any law, order, regulation,, code, ordinance or statute or any other cause occurring prior to PNE CONSTRUCTION’s commencement of Services, and during or after the performance of Services except to the limited extent such losses are directly attributable to PNE CONSTRUCTION’s sole negligence in the performance of the Work.
During the performance of the Work, PNE CONSTRUCTION shall maintain workers compensation and employer’s liability insurance, commercial general liability insurance in the amount of $1,000,000 per occurrence/$1,000,000 aggregate; automobile liability insurance in the amount of $1,000,000 combined single limit and contractor’s pollution liability insurance in the amount of $1,000,000.
11. Dispute Resolution
In the event of dispute(s) between Customer and PNE CONSTRUCTION, the parties agree to exercise a good faith effort to resolve such dispute(s). If the parties do not resolve the dispute, the matter shall then be submitted to binding arbitration in accordance with the rules of the Arbitration Services of Portland, Inc. in Longview, Washington before a single arbitrator. The party that prevails in such arbitration will be entitled to recover from the other party its reasonable attorney’s fees, expert witness fees and other costs of arbitration which shall be determined by the arbitrator and included in the award, which award shall be binding upon the parties. The award rendered by the arbitrator will be final and binding, and judgment may be entered on the award in any court having jurisdiction. The parties may endeavor to resolve disputes by mediation at any time as they may agree, provided, however, that resolution of disputes by mediation is not required prior to initiating resolution of disputes by arbitration. Notwithstanding anything to the contrary in this paragraph, either party may seek injunctive relief in any court having jurisdiction in cases in which monetary damages would not be an adequate remedy. The arbitrator shall have the authority to determine the validity or enforceability of any lien, and the parties mutually agree to accept the arbitrator’s award as final and binding, and waive any right to appeal or seek trial de novo.
12. Governing Law; Jurisdiction; Attorneys’ Fees
This Agreement will be governed by the laws of the state of Washington, without regards to the principles of conflicts of laws thereof. Exclusive jurisdiction and venue in any litigation shall lie in the state and federal courts of Cowlitz County, Washington. In any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs at trial and on any appeal.
Any information or notices required or permitted hereunder may be made by mail, facsimile, email or personal delivery and shall be deemed to have been duly given to either party on the day that notice is delivered personally, on the day it is sent if delivered by facsimile or email, or two days after having been mailed by first class mail to The President, General Manager or Project manager of the other party at the addresses set forth in this Agreement. An executed original of the signed document shall be delivered within three (3) days of any delivery by facsimile or email, but failure to deliver the executed original shall not change the effective date of the document. A party may change its address for future notices by such notice by sending a notice of such address to the other party.
14. Entire Agreement
This Agreement and any attached exhibits constitute the entire Agreement between PNE CONSTRUCTION and Customer. This Agreement shall not be modified or amended nor there any waiver, termination, or discharge of any provision of this Agreement that shall be binding upon the parties except by a writing signed by the party against whom enforcement is sought. Customer and PNE CONSTRUCTION acknowledge that any and all verbal understandings, representations or promises between them have been included within this Agreement. Any proposal for additional or different terms or any attempt by Customer to vary in any degree any of these terms and conditions is hereby rejected. Any covenant, term, or condition set forth in any purchase order, contract, subcontract, acceptance or other instrument shall not operate as a rejection of these terms and conditions. If these terms and conditions are deemed an acceptance of a prior offer by Customer, it shall be limited to and subject to the express terms in these terms and conditions. These terms and conditions supersede any contradictory terms and conditions set forth in any contract, subcontract, or other instrument executed by PNE CONSTRUCTION and Customer.
15. Acceptance; Assignment
If this instrument is executed by Customer, the representative of Customer executing this Agreement warrants that he/she has the authority to execute this Agreement and bind Customer to the terms of this Agreement. If this instrument is included in a proposal or offer by PNE CONSTRUCTION to Customer, Customer may accept this by any written or verbal acknowledgement or by permitting PNE CONSTRUCTION to begin the Work. Without limiting the foregoing, if PNE CONSTRUCTION commences any Work under this Agreement or if Client acknowledges these terms and conditions by email or otherwise, Client will be bound by these terms and conditions. This Agreement shall inure to the benefit of each parties successors and permitted assigns. Customer may not assign its rights under this Agreement without PNE CONSTRUCTION’s prior written consent. PNE CONSTRUCTION may subcontract its obligations under this Agreement.
If any provision of the Agreement or these terms and conditions are found by a court or arbitrator to be unenforceable, that provision will be deemed to be modified to the extent necessary to make it enforceable, while preserving its intent. If any provision of this Agreement is nonetheless held unenforceable in any jurisdiction, the provision will be severed from this Agreement as to that jurisdiction, and the enforceability of this Agreement in any other jurisdiction and of the remaining provisions in that jurisdiction will not be affected.
17. Force Majeure
If the performance of this Agreement or any obligation hereunder is prevented, restricted or interfered with by any act or condition beyond the reasonable control of the affected party, including, but not limited to, acts of God, strikes, unforeseeable transportation delays, or sudden unavailability of materials, the party so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference.
End of PNE Construction General Terms and Conditions.