Eby Construction

Terms and Conditions: General Contractors

 

Terms and Conditions when Eby is Subcontractor to a General Contractor

Terms and conditions as stated herein become a part of our proposal and will apply to the acceptance by Eby Construction of your order. All terms and conditions in this document replace any previous contracts or agreements.

Definitions

  • “We,” “Eby,” and “Eby Construction” is Eby, Construction, Inc

  • “Customer” is the party that is paying Eby Construction, Inc for a job

    • Each Customer is responsible for authorizing staff to make decisions internally

      • If any employee or agent from a Customer’s office, jobsite, or remote location initiates a confirmation, approval, or change to design, scope or value of a project, the Customer is responsible for that employee’s action

  • “Agreement” is this proposal in full

  • “Approval” is the Customer telling Eby to proceed with any action for which Eby has asked, or for which Eby has provided a sample, drawings, mockup or other item for review

    • Approval by a designer, architect, homeowner or other member of the construction effort might be helpful and prudent. But Eby needs approval from Customer in order to proceed

  • “Reasonably defined” means that Eby can take action with the defined item

    • Example: stone countertops are not final-specified, but Customer knows that the stone is ¾" thick, and the nosing buildup is 2" tall. This is a reasonably defined specification

  • “Substantially complete design” is a design in which functions and configurations of Eby’s scope of work will not change during the red line review process, after shop drawings are submitted

  • “Substantially complete design” also means that dimensions in proposal’s reference drawings are within 5% of size that Eby priced them

    • Even within 5% change, if a dimension triggers additional material usage or waste, prices will increase

      • Example: a cabinet becomes 1" deeper, which makes the cabinet consume more than one half of one sheet of plywood. That 1" triggers a 100% increase in plywood cost for the cabinet

  • “Substantially complete design” means that plumbing, electrical, lighting, tile, stone, plaster, appliances and other necessary specifications are current and reasonably defined

  • “Red line response,” or “red lines,” or “red line” means that Customer gathers comments from all parties in response to Eby’s submittal (drawings, mockup, sample, or other submitted item), and incorporate in to one red line response to Eby

    • If Eby receives multiple responses from multiple parties, we will assemble all of those comments and send them to Customer so that Customer can confirm all responses are accounted for. Typical of all responses. This process will be billed hourly, unrelated to included submittal or other scope of work

  • “Continuous access to site” means that Eby is able to deliver and install in the most efficient manner, without delay from other trades or client

  • “Delay” means staff, material, design or other obstruction to Eby work that is not brought to Eby attention at least 4 business days before any scheduled work.

Pricing

  • Quoted prices are valid for 30 days from the proposal date. Pricing is contingent upon entire scope of work.

    • If Eby Construction does not install your project, the total cost will be adjusted and California Sales Tax added to entire fabrication and finishing values

  • Pricing for the scope of work in this proposal is fixed.

    • Pricing may change with design and scope of work changes

    • Planned changes to pricing will be submitted by Eby Construction for approval by Contractor in the form of Change Orders or Revised Proposals

    • Once approved, the scope of work in a Change Order or Revised Proposal is part of the fixed price for the project

  • Unforeseen circumstance or sudden requests for extra work by Contractor may not allow adequate time for the Change Order process. In such an event, Contractor may direct Eby to perform extra work on a time and materials basis.

    • Work done on a time and material basis will be billed hourly, based on the Staff Roster

    • Materials and supplies associated with time and materials work will be billed at cost plus markup

Milestones

  • Project scheduling and design work will begin upon receipt of 25% fabrication deposit, and after Eby and Customer agree that the design is ready for Eby to begin technical drawings

    • A design is ready for Eby to begin technical drawings when Customer has confirmed that aesthetic and functional design work is substantially complete

    • If Eby’s proposal includes additional design work, then that additional work is included in addition to these terms

    • If Eby’s proposal does not include additional design work, and additional design work is required, Customer will pay hourly for design work per the hourly costs defined in Staff Roster

Staff Roster

  • Design/Office Staff: $135 per hour

  • Shop: $135 per hour

  • Finisher in-house: $135 per hour

  • Delivery with one guy: $125 per hour

  • Delivery with two guys: $185 per hour

  • Brian Eby: $175 per hour

General Exclusions

  • The following work is excluded unless noted specifically in an Area of Work:

    • Finish Carpentry, including wall paneling, standing and running trim, doors, jambs and casing

    • Electrical components and electrical work

      • Undercabinet light valences are included, with wiring access planned

    • Plumbing fixtures and plumbing work

    • Appliances and appliance installation

      • Customer define whether Eby will install appliance panels before, or after appliance installation
        OR

      • Customer direct Eby to add time and value to the appliance panel installation scope of work

Shop Drawings

  • Three rounds of drawings included: submittal, 1st revision, 2nd revision, with the drawing sequence:

    • Submittal: Eby sends drawings to Customer. Customer distributes to necessary parties

    • Submittal Response: Customer provides red line response to Eby for 1st revision.

    • After 2 revisions, Customer provides approval of shop drawings, and releases Eby to fabricate

    • If there are comments after the 2nd revision, further drawings will be billed hourly

Materials and Finishes

  • Wood is a natural product with unique characteristics. While we will always choose the most attractive material for each project, grain pattern, color and tone will vary throughout and between any wood products

  • (1) round of samples consisting of an example of each principal material/finish is included in proposal. Submittal process:

    • Submittal: Eby sends submittal to Customer. Customer distributes to necessary parties

    • Submittal Response: Customer provides approval, or provides red line response to Eby

    • If revised submittals are needed, repeat submittal process as needed until approved

      • Further revisions beyond initial submittal will be billed additionally: Eby labor hourly, materials cost plus markup, outside services vendors cost plus markup

Delivery and Installation

  • Delivery and installation of project included U.N.O.

  • Delivery price assumes continuous access to site and adequate space to safely place all casework without delay

  • Staggered installations and/or deliveries can be bid as defined by Client in advance, or billed hourly as they occur

  • Eby Construction does not guarantee any shipment or delivery date. Any time or date stated herein or otherwise identified by Eby or any of its agents or employees for shipment or delivery is intended as an estimate only.

  • Defined performance dates can be arranged on an individual basis, based on a sequencing plan that defines performance dates of all parties in the design, fabrication, finishing and installation process

Repairs and damage to adjacent finishes

  • While Eby will take care to avoid damaging adjacent finishes, Eby is not responsible for adjacent finishes

  • Repair of adjacent finishes after Eby install is by others, not included in Eby’s proposal value

Correction of Work

  • After the contract is substantially completed, a representative from Eby Construction and the Customer shall jointly inspect the work and a single list (punch list) shall be prepared identifying all work to be completed or corrected.

    • There shall be only one such list of work identified to be incomplete or incorrect, and Customer shall sign the list

    • Eby Construction shall then expeditiously complete all work stated on the punch list for which they are responsible in the terms of this Agreement.

  • The Customer shall not contract with any alternative contractor for the performance or completion of work within the scope of the Agreement, nor shall the Customer claim a credit or back charge for the cost of completing an item stated on the punch list, nor shall the Customer occupy or use the stated work until and unless Eby is first given reasonable notice and opportunity to correct the work stated on the punch list referred to above.

    • If Customer does contract with an alternate contractor to perform the punch list work, or otherwise completes the project without first affording the above-described opportunity to Eby, or if the Customer or end user commences to use or occupy the space or work in which Eby performed work, the customer then agrees to accept all work “as is” and thereby waives any claim against Eby under the terms of the Agreement, including warranty claims.

    • If End User has occupied the work area, and Eby elects to continue punch list, Customer is responsible for coordination with end user, protection of access path and work areas, and any required temporary facilities (toilet, water, tool storage).

Warranty

  • Eby insures that all material, products and taxes relating to the customer’s project are paid and that there will be no potential lien claimants after the customer’s final payment has been made to Eby.

  • All work shall be performed in a professionally reasonable manner and there will be no defects in workmanship.

  • Materials or hardware used by Eby Construction or its subcontractors shall be warranted only to the extent that the suppliers or manufacturers of those products provide a warranty.

  • Warranty on the workmanship and material shall be for a period of 12 months from the date of the contract; unless otherwise specified in the material or supplier’s warranty.

  • Eby Construction will perform all necessary labor to repair or replace all defective work at no cost to the customer, and will expeditiously act in good faith to secure replacement products or materials under warranty of products or services.

  • Any claim or cause of action arising out of the terms of the contract or warranty must be filed in a court of competent jurisdiction within the period of the warranty previously stated.

  • Any warranty work performed during the warranty period does not extend the warranty any further than was previously stated in terms of the time from the date of the contract.

  • All aspects of this warranty are void if a person or company other than Eby Construction performs or re-performs any work within the scope of the warranty.

  • The following are excluded from warranty by Eby Construction:

    • Movement or misalignment of cabinets due to settling or movement of foundation floors, walls or ceilings.

    • Damage to woodwork, finish, or any defect due to exposure to excessive moisture, light, heat, humidity, or cold.

    • Wood movement, raising of grain, or any other problem or defect arising from exposure to moisture at the customer’s job site if cabinets or woodwork are delivered unfinished or unsealed, or if job site temperature and humidity are not stable and consistent with final conditions of complete project.

    • It is the responsibility of Customer to insure that all products ordered from Eby Construction comply with all local codes relating to other subcontractors whose work affects Eby products, i.e. (framing, plumbing, electrical).

      • The warranty will not include any changes or alterations necessary to conform to such codes.

Storage and Handling

  • S & H will be applied to any and all projects undeliverable for more than 30 days due to delays caused by the real property owner, architects, interior designers, contractors, service people, vendors or any other source not including subcontractors, vendors and suppliers hired or paid directly by Eby.

    • Storage charges are assessed at $ 0.75 per square foot, per day, 7 days a week.

    • Handling charges are assessed hourly.

  • Charges will apply to all projects at any point during the fabrication process beginning upon delivery of raw materials.

  • Charges will apply until projects are delivered or fabrication has commenced, rescheduling for delivery or fabrication will be dependent upon EBY’s workload at that time.

  • Charges will be invoiced monthly and will be due prior to delivery or installation of any projects.

  • Projects delivered to a site and not installed due to delays by others will be subject to full payment minus the cost of installation as determined by Eby at its sole discretion.

Payments

  • Account balances not paid within 30 days of invoice date will be charged a finance charge of 1.5% per month or the maximum permitted by law and a $25 late fee.

  • All returned checks, for any reason, will incur a $50 handling charge plus bank fees, per occasion.

  • Projects with, for any reason, past due balances, partial payments, returned checks, etc. may be delivered and or installed on a pre-paid basis at the sole discretion of Eby Construction.

  • Any hold back or retainage shall be paid within 30 days of the completion of the original punch list items.

  • No claims will be accepted on accounts with unpaid balances.