TERMS AND CONDITIONS
If for any reason beyond KCI’s control, the Work in any accepted cannot be completed within 30 days of proposal acceptance, KCI reserves the right to adjust these Terms and Conditions.
Prior to commencement of Work, KCI will communicate with the Customer and agree to project schedule for each phase of Work (if multiple phases are required). This will include joint project communication with respect to safety, traffic control, anticipated schedule,
preconstruction meetings via direct contact, phone communication and written documentation. Additionally, KCI should not be responsible for any delays or undisclosed information by subcontractors or project owner or cost associated there in.
Due to rising material costs, any unanticipated increase in material pricing between date of proposal and the starting date of construction is subject to an escalation clause. This obligates the Customer, as part of any balance due, to remit payment for any cost increases including taxes and 10% markup on material.
KCI will not be responsible for damage to any underground utilities or other hidden conditions or non disclosed by the customer or subcontractor if the Customer fails to give KCI Corp. advance notice of their existence and location. Customer agrees to indemnify, defend and hold KCI Corp. harmless for any loss, expense or damage resulting from, arising out of, or in any way related to such condition.
This proposal includes 1 mobilization for each discrete phase of the work (i.e., Grading, paving, etc.). If KCI is required to mobilize more than on one occasion per phase, due to the acts or omissions of Customer, including delays occasion by Customer, then Customer agrees to remit timely payment of $1500.00 per additional mobilization.
Prior to the commencement of the Work, all work of others in the area shall be completed to such an extent in the sole discretion of KCI that it will not impact or interfere with the Work of KCI. If KCI is directed to commence Work prior to the time such other work is completed, Customer agrees to pay for costs occasioned by the direction to commence Work, including all cost overruns and reduced productivity together with the costs of delay.
After the tender of the Proposal, should there be any changes to site conditions and/or specifications which involve extra costs will be performed only upon submission and acceptance in writing of a written change order. Upon execution by both parties, the written Change Order shall become subject to the payment terms incorporated in any accepted Proposal.
Prior to the commencement of any work conducted by KCI, Customer shall provide KCI with the identity of the legal owner of the location where the work is contemplated together with a legal description, project address and county where the work will be performed. KCI may file a Notice of Contract in reliance on this accurate information.
KCI reserves the right to refuse to construct a pavement unless minimum grades of 1% are attainable for surface drainage. If Customer directs construction with less than a minimum grade of 1%, it is understood that ponding may occur and that no warranty attaches to the Work as to satisfactory surface drainage. KCI Corp. is not responsible for the redesigning of plan grades in order to establish a minimum of 1% drainage. Should at any point prior to or during the course of KCI’s participation on the project, any changes by the owner will be made known to KCI immediately.
No materials will be placed on a wet, unstable, or frozen sub grade. This determination shall be made by KCI only. A suitable sub grade shall be furnished to KCI as a condition precedent to any performance of any Work required under this agreement. All sub grade must be rough graded by Customer to within +/- 0.10″ Suitability shall be determined by KCI.
When resurfacing concrete, brick or asphalt pavement KCI is not responsible for the reproduction of cracks or expansion joints which may occur for any reason.
If during the course of construction activities, KCI. is required to travel across existing concrete or asphalt pavements, KCI shall not be liable for damage to surfaces.
As is permissible, Customer, at its sole expense, shall comply and obtain all necessary licenses and permits under present and future laws, statutes, ordinances, rules, orders or regulations of any governmental body having jurisdiction over the site, the Work, or the Customer shall bear the sole cost of any fines or penalties for failure to comply with or obtain the same.
If any amount due under this contract is not paid when due, referred to any attorney for collection (whether or not litigation is commenced), Customer agrees to pay for all reasonable attorney’s fees, costs, liquidated damages and expenses incurred by KCI. In connection with collection efforts including but not limited to statutory interest that a court may appoint. Any legal action with respect to the Work shall be interpreted and performed in accordance with the internal laws of the State of Rhode Island. Any and all other considerations notwithstanding, it is clearly understood that an additional charge for any State Sales Tax, where applicable, will be included as a part of all billings, payment for which shall be the responsibility of Customer. Such assessment will be included in and will be made on or before the due date of which it is a part.
Claim Resolution
Any claim arising out of or relating to the Work, including these Terms and Conditions, which cannot be resolved in accordance after informal mediation conducted between the parties shall be resolved in accordance with the following procedures:
a. Arbitration. If the dispute cannot be resolved by informal mediation, it shall be settled by non binding arbitration administered by the American Arbitration Association in accordance with its Construction Arbitration Rules; and judgment on the Award rendered by the Arbitrator may be entered and enforced in any court having jurisdiction thereof. Notwithstanding anything to the contrary contained herein, the Arbitrator has no authority or power to delete from or add to or modify the terms of this Agreement. The parties shall jointly share the cost of the arbitration, arbitrator and cost of transcripts, should either party desire a transcript.
b. Notwithstanding the foregoing, in the event a Claim has arisen out of regulatory action or proceeding against a party hereto by a third party, the Clam shall not be subject to arbitration.
c. At any time, a party may seek an injunction, or other equitable or similar judicial relief, if in its judgment such action is necessary to avoid irreparable damage, to preserve the status quo or to otherwise preserve the benefits and rights created by the Contract. The parties may adjudicate in any Court of competent jurisdiction any causes of action and claims for damages arising out of such request.
KCI proposes to furnish material and labor – complete in accordance with the terms contained in the Proposal. Final payment is due thirty (30) days from substantial completion of the Work. A 1.5% per month service charge shall be applied to all outstanding balances over thirty (30) days.
SEVERABILITY: In the event that any provisions herein shall be deemed to be illegal or unenforceable such provision shall be deemed to be void but the rest of the proposal and the terms and conditions herein contained shall be deemed to be valid and binding upon the parties.
KCI at is sole option may cease any Work or choose not to start any Work described in the Proposal after November 1st of any calendar year. Said work shall be resumed by KCI the following year when weather conditions allow. There shall be no penalty or damages available to Customer for delay in performance.
Exclusions and Conditions:
The price of the Work shall not include the costs for permits, bonds, fees, testing, engineering, layout or surveying, which costs shall be the responsibility of Customer and shall be incurred at the request of KCI as it deems necessary.
All work to be completed in a workmanlike manner according to industry standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written change orders signed by both parties, and will become an extra charge in excess of any accepted Proposal’. KCI Corp. maintains Workman’s Compensation Insurance for its employees.
KCI shall not be responsible to damages or delays occasioned by events that shall be deemed to be beyond the control of the parties including: acts of nature or the public enemy; expropriation or confiscation of facilities by governmental or military authorities; changes in laws; war, acts of terrorism, rebellion, sabotage or riots; floods, unusually severe weather that could not reasonably have been anticipated; fires, explosions, or other catastrophes; or other similar occurrences as well as, any other matters associated with force majeure.
The Customer waives claims against KCI for consequential damages arising out of or relating to the Work. This Waiver includes, but is not limited to: damages incurred by the Customer for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons or any other expenses tangentially related there to not mentioned there in.