1. As the owner of the Property listed above, or as an agent with authority to bind the owner of the Property (collectively referred to as “Owner”), Owner is responsible to pay Brush Rite Painting L.L.C. (also d/b/a Brush Rite Painting) (“BRP”) for furnishing all labor, services, materials and equipment necessary for the service on the Property ("Work") rendered, even though Owner may have insurance that covers all or part of the Work. All materials used, removed, or salvaged from the Work are the property of BRP, and shall remain the property of BRP after the Work is complete. A description of the Work, including the estimated cost for such Work (“Estimate”), is attached and expressly incorporated to this Agreement by reference. Any change orders to the Work that vary from the Estimate must be in writing and signed by both Parties. Owner acknowledges and agrees that change orders may result in additional cost, and Owner shall be responsible for paying the same upon presentation of an invoice for the same from BRP. Owner agrees that the final invoice for the Work will depend on the exact service(s), materials and repairs necessary to complete the Work, and that this may necessitate payment by Owner to BRP above and beyond the payment amount listed in the Estimate.
2. Under this Agreement, Owner shall remit to BRP a non-refundable deposit equal to one third (⅓) of the amount of the Estimate (“Deposit”) 1 week prior to the initiation of the Work, to be applied to the amount of the final invoice for the Work. Payment of two thirds (2/3) for the Work is due upon completion of Work, upon the completion of a segment of the project highlighted by the estimate, or upon receipt of an insurance settlement payment to the Owner, whichever occurs first. If Owner fails to pay for the Work when due, then Owner will be assessed a finance charge on the unpaid balance at a rate of one and one-half percent (1.5%) per day. Close-out documents for the Work will not be released to the Owner by BRP until BRP is paid in full for the Work. In addition, if the Owner's unpaid balance remains unpaid thirty (30) days after completion of the Work, then the Owner will be responsible for paying all collection costs (including reasonable attorney fees) incurred by BRP during collection, including fees associated with placing a construction lien, with or without suit.
Cancellation: All confirmed projects are considered final upon acceptance. If you cancel within 72 hours of the anticipated start day you will forfeit your deposit without refund. Projects moved because of an Act of God will be moved with priority and no loss of refund.
3. BRP is not liable for damage caused by the events necessitating the Work or for damage to the Property or contents of the Property that may arise as a result of performing the Work. Owner is liable for any damage, theft or any monetary loss suffered by BRP with respect to its equipment utilized at the Property in conjunction with the Work. Owner will make electricity and water available to BRP at no charge to BRP throughout the process of performing and completing the Work. BRP does not grant any warranty as to the Work, including express or implied warranties for labor or materials other than those stated in Section 5 of this Agreement below.
4. BRP shall begin Work at the Property within three (3) business days of (the “Start Date”), unless BRP provides notice to Owner at least five (5) business days prior to the Start Date that a new Start Date will have to be agreed upon. If the foregoing Start Date is left blank and Owner signs this Agreement, it shall be presumed that BRP has been granted the authority to begin performance of the Work at the time of its choosing. Owner shall ensure the area in which the Work is being conducted is clear of any debris, personal property, or other items which would interfere with the ability of BRP to complete the Work (collectively “Debris”). Should BRP be required to remove any Debris from the Work location, Owner shall be responsible for paying BRP the greater of Two Hundred Dollars ($200.00) or Twenty-Five Dollars ($25.00) per hour of labor used to remove such Debris.
5. By signing below, Owner is deemed to have accepted the Work and waived any claim for adjustment from the final invoice. Unless Owner notifies BRP within ten (10) business days after completion of the Work of any defects in the Work, Owner waives its right to raise any such defect in the Work and hereby consents to satisfaction with the quality of the Work and hereby authorizes BRP to be paid under this Agreement. Notwithstanding the foregoing, certain materials provided by BRP from third
party material providers relative to the Work may be subject to express warranty from such third-party material supplier(s). In the event such a warranty is available from a third party material supplier and Owner experiences a defect in such materials
relative to the Work, Owner shall notify BRP of such defect in writing, and BRP will provide Owner with such third-party warranty information, if any is available. By signing below, Owner acknowledges and agrees that the foregoing constitutes any and all warranties provided by BRP relative to the work, express or implied.
6. Upon completion of the Work, if Owner is to receive payment from or through any insurance policy, Owner shall authorize and instruct such insurer to directly pay BRP or to include BRP as the payee on any settlement check issued to Owner. BRP will accept payment from the insurer, but Owner is primarily liable and any obligation the insurer has to the Owner is immaterial to the Owner’s liability to BRP.
7. MISCELLANEOUS PROVISIONS:
(a) Entire Agreement: This is a binding Agreement, which incorporates the entire understanding between BRP and Owner and/or Agent (the “Parties” and singularly “Party”), including the Estimate, and any Credit Card Authorization Consent Form that may be signed by Owner relative to payment for the Work.
(b) Confidential Pre-Litigation Mediation: Excepting herefrom any claim made by either Party under the Construction Lien Act for which venue for such claims shall be immediately appropriate as described in Section 7(c) below, as a condition precedent to the filing of a lawsuit by either Party, except when a Party seeks temporary or preliminary equitable relief or when delay will unduly prejudice a Party, the Parties agree to engage in a confidential and good faith mediation with a mediator to be chosen upon mutual agreement of the Parties. Unless mutually agreed to the contrary, the Parties will schedule the mediation to take place within fourteen (14) days of the date the dispute arises, or where are a Party seeks temporary or preliminary equitable relief, within thirty (30) days of the date the dispute arises. The Parties will comply with all confidentiality and other agreements reasonably required by the mediator. The Parties also agree to confer on the voluntary exchange of information, documents and other data that will assist the confidential mediation process reasonably required by the mediator. It is the express intent of the Parties that the mediation described in this Section supplant and supersede any other pre-litigation dispute resolution procedures, including those imposed by the court, by statute, or otherwise.
(c) Forum and Venue: The Parties agree that for any dispute involving a claim under the Construction Lien Act, the forum, jurisdiction and venue shall be the circuit court for the county where the Property is located. If the dispute does not involve a claim under the Construction Lien Act, the Parties agree that the forum, jurisdiction and venue under this Agreement shall be in the Washtenaw County Circuit Court or 14A-2 District Court, depending upon the relief sought.
(d) Savings Clause: In the event any provision of this Agreement is found to be void or voidable for any reason whatsoever, the remaining provisions of this Agreement shall, nevertheless, be binding with the same effect as though the void provision of this Agreement was deleted. In the event any provision of this Agreement is found to be unreasonable by a court of competent jurisdiction, the provision shall be applied so as to be reasonable in its application by the court.
(e) Joint Agreement: The Parties hereby warrant and represent that this Agreement was prepared jointly by the Parties and any ambiguity in any construction hereof shall not be construed against one Party and in favor of the other Party.
(f) Amendments: This Agreement may not be amended except in a writing signed by the Parties.
(g) Notice: Any notices given under this Agreement shall be personally delivered, or in writing and sent by U.S. certified mail, return receipt requested to the address listed for that Party on Page 1, and shall be considered given upon acknowledgment of receipt.
(h) Waiver in General: A failure by a Party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement, or to exercise any right or remedy upon a breach thereof, shall not constitute a waiver of any such breach or any other covenant, duty, agreement, or condition, or any subsequent breach or any other covenant, duty, agreement, or condition.
(i) No Third-Party Beneficiary: No person or entity not a party to this Agreement shall be deemed a third-party beneficiary of this Agreement for any purpose.
(j) Construction Lien: Owner hereby grants BRP the right to record a construction lien against the Property upon which Work is performed by BRP if Owner fails to pay BRP any amount pursuant by this Agreement, or otherwise.
(k) Unconditional Payment Guarantee: The person signing this Agreement unconditionally warrants that he, she or it is the Owner of the Property or the duly authorized Agent of the Owner of the Property and guarantees payment hereunder and payment for all legal fees and costs incurred by BRP in accordance with this Agreement.
(l) Attorney Fees: In the event of any legal or equitable action, including any voluntary arbitration, appeals or extraordinary writs, which may arise hereunder between or among the Parties hereto, the prevailing Party shall be entitled to recover a reasonable attorney fees and arbitration costs.
(m) Right of Termination and Retention of Deposit: In the event of change in circumstances or other factors which may delay the commencement or completion of the Work, BRP may invoke a right to terminate this Agreement before or after the Work has been initiated. BRP’s termination may result from, but is not limited to, lack of cooperation by Owner or Owner’s agent(s), including the inability to begin or complete the Work due to the condition of the Property. In the case that Work has been initiated prior to termination, BRP may elect to retain the Deposit, in whole or in part, to satisfy part or all payment owed to BRP by Owner for any portion of the Work that had been performed prior to termination.
(n) Force Majeure: BRP will not be liable for any failure or delay in performance under this Agreement to the extent such failures or delays are proximately caused by circumstances beyond BRP’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, failure of suppliers, contractors or subcontractors, and other like events that are beyond the reasonable anticipation or control of BRP to substantially meet its performance obligations under this Agreement.
I have read and understood the terms above and below. I hereby agree to the terms of this Agreement.