General Terms & Conditions of Construction
Last updated: April 20,2021
This quotation is an offer to sell to potential customer(s) from Hawk Construction, LLC (hereinafter referred to as the “Seller”). The Buyer (hereinafter referred to as, but not limited to “Owner”, “Owners Representative”, “Construction Manager”, “General Contractor”) HAS THE RIGHT TO ACCEPT THIS OFFER AND IS LIMITED TO BUYER’S ASSENT TO THE TERMS AND CONDITIONS PRINTED HEREON, AND NO TERMS ADDITIONAL TO OR DIFFERENT FROM THOSE IN THIS OFFER ARE BINDING ON SELLER. THERE ARE NO UNDERSTANDINGS, TERMS, CONDITIONS OF WARRANTIES NOT FULLY EXPRESSED HEREIN. IN THE EVENT OF A CONFLICT BETWEEN THE BUYER AND SELLER’S TERMS AND CONDITIONS, THIS DOCUMENT SHALL CONTROL OVER THE SUBCONTRACT OR PURCHASE AGREEMENT.
PERIOD OF VALIDITY
This quotation shall be valid for a period of thirty (30) days from date of issuance. Seller reserves the right to re-evaluate costs after thirty (30) days.
Unless otherwise stated herein and explicitly provided in Seller’s Quotation, the Seller shall not be responsible for the following, including but not limited to: geo-technical reports, fees, permits, bonds, variances, surveying, licensed surveyors and or sealed survey reports, establishing benchmarks, set back requirements, code compliances, testing of any kind, inspections of any kind, pier spoil or excavated dirt removal, concrete wash-out service, removal or relocation of obstacles impeding the work area, traffic control or any service allowing access to or from the work area, rock drilling, drill casing, sono-tube, hydro-excavation or other non-standard drilling, excessive dewatering operations (capacity exceeding one small pump), demolition or removal services, import or export of soil or another fill, rough grading, fine grading, sub-grade remedial design or construction, utility relocations, temporary utility supports, temporary or permanent draining structures, temporary or permanent shoring, temporary or permanent fencing, barriers, or barricades, electrical power, trash removal, toilets, water, fire protection, man hoists, extended warrantees, sealing, grouting, caulking, patching, galvanizing of components, epoxy coated reinforcement, non-standard reinforcement materials, non-standard inserts, form liner, staking, striping, geo-grid, additional earth reinforcement materials, soil separation materials, and all other items not explicitly stated in Seller’s quotation.
Buyer shall not hold Seller responsible for quantities specified in this quotation. Quantities in this quotation have either been estimated by Seller or are provided upon the pay item quantity provided by others. Quantities may change upon final engineering or in the event of unforeseen site or design conditions. Buyer will be responsible for payment of actual quantities of materials produced. Seller reserves the right to adjust quotation pricing if final design differs from product on quotation.
Unless otherwise stated, this quotation is based upon the use of Seller’s standard installation practice, spacing, and other means to manufacture the precast units per the Seller’s Standard Specifications for Precast Concrete. Products will be cast using Seller’s standard manufacturing procedures, including but not limited to; concrete mix designs, curing methods, surface treatments and product handling. Quality of products will be consistent with the industry standards for precast concrete products. The Seller reserves the right to modify the design to preserve the integrity of the precast material and to facilitate the most efficient means for production and erection. All such design changes will be subject to the design specifications and approval by the Engineer of record.
BASIS OF QUOTATION
Seller bases this quotation on information provided by others. Buyer shall not hold Seller responsible for the accuracy of the Information provided by others. Buyer shall provide Seller with not less than 10 days written notice to commence work and shall permit Seller to complete work without interruption, unless otherwise agreed in writing or provided in quotation. Seller will not manufacture any product until approved shop drawings have been received.
ADDITIONS AND DEDUCTIONS
Any expense incurred by Seller in connection with repairs to or replacement of any part of the work stated herein caused by the failure, repair, or replacement of the work of others, shall be paid by Buyer and added to the amount of this contract and be considered a part thereof.
PROVISION OF WORK SITE
Buyer agrees to the erection and installation qualifications/provisions stated herein, unless specifically specified otherwise: Buyer shall provide to Seller at work site the following, but not limited to; electricity, sanitary facilities, clean water, a concrete wash-out area and other necessary utilities at work site and any other OSHA required facilities. Should unforeseen conditions arise upon mobilization to work site; such Additional work shall be performed by Seller after Buyer has been notified and a change order has been executed. Buyer agrees to take all reasonable measures to protect utilities, footings, foundations, walls, curbs, landscaping, trees, foliage, and private property of any kind which Hawk may be required to cross, or which may conflict with the work area and fence line. Buyer agrees not to hold Seller liable for any damage to said surfaces, or any adjacent vegetation upon preforming installation or erection.
The Buyer shall provide the work site free of all vehicles and other equipment and shall not hold the Seller liable for damages to any property adjacent to work site location. The Buyer provides all traffic control, including but not limited to fences, barricades, flagmen, and permits. One mobilization to the job site is included in this quotation unless specifically stated above. Additional mobilizations or downtime of equipment and/or personnel (necessitated by others) will be invoiced as an additional cost. This proposal is based on a standard forty (40) hour workweek and does not include any overtime wages. Seller is not responsible for delays, or associated overtime costs, due to any cause beyond our reasonable control. Saturdays can be considered as makeup days but only for the concurrent week. Buyer is to provide timely examination and acceptance of position and alignment. "As built" reports and licensed surveyors are furnished by others. Seller is not responsible for fall protection of personnel other than our own workers. Overhead obstructions that limit or interfere with erection, drilling or forklift operation must be removed or relocated by the Buyer. All work shall conform to applicable codes. No stricter codes will apply. All materials are to be delivered to the work area by trucks, in erectable sequences as required by the erector. Yard, storage, or multiple handling of materials is not included. This proposal is based upon receiving a continuing supply of materials to ensure a continuous erection operation. Any repairs, modifications, changes, temporary connections, fixes, and other deviations from the erection documents may result in extra charges. Seller maintains stringent safety and training policies, complying with all OSHA requirements. Adherence to standards beyond OSHA requirements, or site-specific training will be considered as an added cost and will be submitted as a change order. Buyer shall provide adequate level access to the perimeter and interior structure for Seller’s trucks and forklifts/cranes to operate under their own power. Sufficient job site storage will be provided for Seller’s trailers. Seller anticipates needing a minimum of five (5) spaces with two (2) of those spaces being within hook reach of forklift/crane. Additional space will be provided by the Buyer into and around the structure based upon Seller’s sole judgement is essential and as required as part of this quotation. Buyer must provide layout locations for fencing by marking at a one (1) foot offset and at a minimum of 50-foot intervals, and to provide staking at all start and stop locations, and all corners. Buyer shall prepare the grade to within +/- one (1) tenth of a foot from the finished grade prior to pier construction or installation. Buyer shall provide a minimum of 20 feet of clear access on one side of the fence for skid steer and material staging. Additional costs shall apply if access is insufficient to use equipment, larger drill rigs, excavation and to handle all materials.
If applicable and provided in Seller’s quotation, Seller shall coordinate with Buyer on a pre-arranged time for Seller to perform and Buyer to approve sample aesthetic treatment, not to exceed one (1) section. If Buyer rejects Seller’s sample aesthetic treatment, Seller reserves the right to charge an additional fee for each additional sample required and will provide the Buyer a quotation for these additional services at the time an additional sample is required. Screen wall aesthetic treatments shall be per Seller’s standard aesthetic treatment procedures and policies and shall include one (1) base colour and two (2) accent colours unless an aesthetic treatment schedule of values is explicitly provided in Seller’s Quotation. Hawk uses PPG Speedhide paint for all screen walls and all colours must be chosen form PPG standard colours. Other colours or brands may result in extra charges passed to the Buyer, due to Hawk having no pricing agreement with those suppliers. Buyer shall not hold Seller responsible for any damage incurred by, but not limited to overspray, water, sand, cement or any other material or procedure. The exterior finish will consist of a vertical mould finish, and minor imperfections such as: form lines, bug holes, minor chipping, spalling, minor surface cracking, colour variation and other common imperfections that are inherent in precast concrete. Concrete produced shall be a common grey colour typical to regular concrete.
The products sold hereunder shall be subject to Seller’s standard manufacturing variations, tolerances, and classifications. Seller reserves the right to repair, rather than replace, any spalled or cracked units provided if is structurally and architecturally feasible.
PAYMENTS AND LATE CHARGES ON PAST DUE ACCOUNTS
Buyer represents that Buyer is solvent and can and will pay for the products sold to Buyer in accordance with the terms hereof. If Buyer shall fail to comply with any provision or to make payments in accordance with the terms of this contract or any other contract between Buyer and Seller, Seller may at its option defer shipments or, without waiving any other rights it may have, terminate this contract. All deliveries shall be subject to the approval of Seller’s Credit Department. Seller reserves the right, before making any delivery, to require payment in cash or security for payment, and if Buyer fails to comply with such requirement, Seller may terminate this contract. Seller reserves the right to require a 20% deposit of the contract price upon execution of this contract. All payments for goods and services provided hereunder shall be due as billed and shall not be contingent upon payment to the Buyer from a third party. The Buyer's liability hereunder shall not be delayed or excused on the grounds that it has not received payment from a third party. Seller specifically rejects "paid when paid" terms or other payment conditions which are not directly related to Seller’s performance hereunder. Seller reserves the right to invoice the Buyer monthly for the yard price of material cast specifically for this project. A late charge of 1-½% monthly (18% annual rate) or the maximum allowed by state law, if less, will be imposed on all past due accounts.
This proposal includes furnishing labour to install products, applicable use taxes have been included in the prices quoted. However, no other tax imposed in respect of the sale of the products sold hereunder is included in any quotation by Seller, unless otherwise stated herein and explicitly provided in Seller’s Quotation. Any tax shall be added and paid by Buyer as part of the purchase price if required, but not included in Seller’s quotation.
In any event and in addition to all other limitations stated herein, Seller shall not be liable for any act, omission, result or consequence, including but not limited to any delay in delivery or performance, which is (i) due to any act of God, the performance of any government order, any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law, local labour shortage, fire, flood or other casualty, governmental regulation or requirement, shortage or failure or raw material, supply, fuel, power or transportation, breakdown of equipment, or any cause beyond Seller’s reasonable control whether of similar or dissimilar nature to those above enumerated, or (ii) due to any strike, labour dispute, or difference with workers, regardless of whether or not Seller’s is capable of settling any such labour problem.
CLAIMS BY BUYER
Buyer will not hold Seller responsible for any delays that result from delinquent or untimely engineering review. Seller is not liable for liquidated damages penalty regardless of Buyer's obligation for such a penalty, unless an agreed upon and executed duration schedule is executed in writing at the time of execution of this quotation. Buyer shall thoroughly inspect products sold under this contract immediately upon receipt to verify for itself that they conform to the specifications of the contract. Buyer must notify Seller of claims for failure or delay in delivery within seven (7) days after the delivery date. Buyer must notify Seller of any claims for nonconforming or defective goods within seven (7) days after the nonconformity or defect was or should have been discovered. In addition, Seller must be given an opportunity to investigate the claim before Buyer disposes of the material, or else Buyer’s claim will be barred. Seller shall incur no liability for damage, shortages, or other cause alleged to have occurred or existed at or prior to delivery to the carrier unless the Buyer shall have entered full details thereof on its receipt to the carrier.
Buyer represents that it has made its own independent determination that the products it is purchasing under this contract meet the design requirements of Buyer’s project and are suitable for Buyer’s intended application. Buyer further represents that it has not relied in any respect on any written or oral statements or advice from Seller in making that determination.
Seller warrants that it can convey good title to the goods sold under this contract and that they are free of liens and encumbrances. Seller also warrants that the goods sold under this contract are free from defects in material and workmanship for a period of one (1) year after the date of delivery unless an extended period is explicitly provided in Seller’s Quotation. This warranty does not cover failure of any part or parts manufactured by parties other than Seller, failure of any part or parts from external forces, including but not limited to corrosive or expansive soils, earthquake, installation by others, vandalism, impact damage, frost or ice damage, delays or difficulties related to limited visibility or underwater installations, or application of excessive torque. There are no warranties, express or implied with respect to products sold hereunder which are misused, abused, accident, modifications, unsuitable physical operating environment, improper maintenance, storage by others, installation by others, supplied for use, or made available for use in any application of which Seller has not been notified in writing by Buyer at the time of order for the products sold hereunder. SELLER MAKES NO OTHER WARRANTY WHATSOEVER, EXPRESS, OR IMPLIED. ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE ARE DISCLAIMED BY SELLER AND EXCLUDED FROM THIS CONTRACT.
BUYER’S OBLIGATION TO PASS ON LIMITATION OR WARRANTIES AND REMEDIES
To protect Seller against claims by Buyer’s buyer, if Buyer resells any of the goods purchased under this agreement, Buyer shall include the language contained in paragraphs17 and 19 of this agreement, dealing with Seller’s limitations of warranties and remedies, in an enforceable agreement with Buyer’s buyer, or otherwise include language in an enforceable agreement with its buyer that makes Seller’s limitation of warranties and remedies binding on its buyer. Buyer shall also include a provision in its agreement with its buyer applying Texas law to any claims its buyer might assert against Seller with respect to goods manufactured by Seller and requiring its buyer to bring any such action against Seller either in federal district court in McKinney, Texas or the common pleas court for Collin County, Texas. Buyer shall defend, indemnify, and hold Seller harmless from all claims, causes of action, damages, losses, or expenses (including reasonable attorneys’ fees) that Seller incurs by reason of Buyer’s failure to comply with the terms and conditions stated herein.
LIMITATION OF BUYER’S REMEDIES AND SELLER’S LIABILITY
Seller’s liability hereunder shall be limited to the obligation to repair or replace only those products proven to have been defective in material or workmanship at the time of delivery, or allow credit therefore, at its option. Seller’s total cumulative liability in any way arising from or pertaining to any product sold or required to be sold under this contract shall NOT in any case exceed the purchase price paid by Buyer for such products. SELLER IS NOT RESPONSIBLE FOR ANY LABOR, REMOVAL, OR INSTALLATION CHARGES THAT MAY RESULT FROM ANY REPAIR OR SERVICES PROVIDED BY A THIRD PARTY. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR COMMERCIAL LOSS, LOST PROFITS, CLAIMS FOR LABOUR, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY TYPE, WHETHER BUYER’S CLAIM BE BASED IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE. IT IS EXPRESSLY AGREED THAT BUYER’S REMEDIES EXPRESSED IN THIS PARAGRAPH ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES.
BUYER’S RIGHT OF TERMINATION
Buyer may terminate this contract in whole or in part upon notice in writing to Seller. Seller shall thereupon cease work and transfer to Buyer title to all completed and partially completed products and to any raw materials or supplies acquired by Seller especially for the purpose of performing this contract, and Buyer shall pay Seller the sum of the following: (1) the contract price for all products which have been completed prior to termination; (2) the cost to Seller of the material or work in process as shown on the books of Seller in accordance with the accounting practice consistently maintained by Seller plus a reasonable profit thereon, but in no event more than the contract price; (3) the cost F.O.B. Seller’s plant of materials and supplies acquired especially for the purpose of performing this contract; and (4) reasonable cancellation charges, if any, paid by Seller on account of any commitment(s) made hereunder.
SELLER’S RIGHT OF TERMINATION
In addition to the other rights of termination provided for in this contract, and if this contract is made pursuant to any governmental rule or regulation, plan, order, or other directive, upon the termination thereof, Seller shall have the option of cancelling this contract in whole or in part.
PASSAGE OF TITLE
Title to the products sold hereunder shall pass upon delivery to the carrier at the point of shipment. Neither Buyer nor the consignee shall have the right to divert or reconsign such shipment to any destination other than specified in the bill of lading without permission of the Seller. Unless otherwise agreed Seller reserves the right to select the mode of transportation.
Failure or inability of either party to enforce any right hereunder shall not waive any right in respect to any other or future rights or occurrences.
PERIOD OF LIMITATIONS
Buyer and Seller agree that any action by Buyer against Seller for a breach of this contract, including any action for breach of warranty, or otherwise in connection with the goods sold under this contract, must be commenced by Buyer against Seller within one year after the cause of action therefore accrues.
CONFLICTING PROVISIONS OFFERED BY BUYER
Any terms and conditions of any purchase order or other instrument issued by the Buyer, in connection with the subject matter of this document, which are in addition to or inconsistent with the terms and conditions expressed herein, will not be binding on Seller in any matter whatsoever unless accepted by Seller in writing.
In case any provision of this contract shall be declared invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
This contract shall be governed by, and construed and enforced in accordance with, the laws of the State of Texas. Buyer and Seller specifically agree that any legal action brought relating to this contract will be brought and tried in the federal district court in McKinney, Texas, or, in the absence of jurisdiction, the Collin County Court of Common Pleas in McKinney, Texas. Nothing contained in this paragraph shall preclude the Seller from filing and foreclosing a mechanics lien to which Seller may be entitled.