TERMS AND CONDITIONS - Pool & Spa Construction & Renovation

(1) ACCEPTANCE OF PROPOSAL. This Proposal shall remain valid for 30 days from the date signed by REEF TROPICAL POOLS (“Contractor”) and become a binding Agreement once signed by both parties.

(2) INSURANCE. Contractor shall carry standard form workers compensation and general liability insurance and Customer agrees to look only to Contractor’s insurance relative to any claim arising from Contractor’s performance hereunder.

(3) WORKING CONDITIONS. Customer is responsible for advising Contractor in writing prior to commencement of the work of the location of any life safety systems, utilities, as well as objects or structures which could be damaged by Contractor’s personnel, machinery, materials or vehicles.  Customer is responsible for providing ingress and egress to the work site.  Customer shall furnish surveys describing physical characteristics, legal limitations and utility locations as well as a legal description, and Contractor shall be entitled to rely on the accuracy of any documents and information furnished by the Customer, its agents and design professionals. Contractor's employees shall not be required to work in hazardous, improper or unreasonable conditions, and the Customer agrees to address these conditions to Contractor’s satisfaction as well as cooperate with Contractor to provide a safe and proper working environment and to not interfere with the progress of the work.

(4) DAMAGE TO CONTRACTOR’S WORK. The Customer shall be fully responsible for the costs of any damage to Contractor 's work or equipment caused by Customer, its agents, contractors, subcontractors or third parties. Customer shall immediately reimburse Contractor for the costs necessitated by repairs to such damage, including labor, material, expenses and 20% for overhead and profit. Customer assumes the risk of loss or damage resulting from fire, theft, misuse, abuse, natural elements, or vandalism, and Customer agrees to reimburse Contractor for any such loss or damage.

(5) CHANGES AND/OR ALTERATIONS. In the event there are any changes after Contractor has computed its costs, then it is agreed that the Customer and Contractor shall compute the additional cost for such changes and thereby agree upon the sum to be added to the amount set in this Agreement.

(6) COMPLETION AND ACCEPTANCE. Customer shall immediately inspect the work performed by Contractor and any aspect of the work not acceptable to Customer must be specifically noticed in writing to Contractor within 5 days of Contractor’s performance of its work. Contractor shall then be given a reasonable opportunity to address such issue.  A full and complete acceptance of the work shall be presumed upon the Customer making payment.

(7) PAYMENT. In the event any balance due Contractor is not paid within 30 days of Contractor’s invoice, then the Customer shall be in default. Customer shall be responsible to pay interest at the rate of 1½% per month (18% per annum) on any unpaid amount and to pay all costs and expenses, including but not limited to reasonable attorney’s fees and costs, incurred by Contractor in collecting any outstanding amount due under this Agreement, or enforcing its rights hereunder, with or without suit. Proper venue for any litigation stemming from this Agreement will be a court of competent jurisdiction in Miami-Dade County, Florida.

8) WARRANTY. Contractor warrants to Customer that all work furnished by it will be of standard quality, type and condition, free from defects, and will be performed in a good workmanlike manner. Contractor hereby agrees to address any defective workmanship for up to one (1) year from the date the pool is plastered and upon receipt of proper notice in writing, by certified mail, within a reasonable time after discovery.  In no event no later than 15 days after discovery: such notice shall be sent to Contractor at its place of business. Contractor further warrants the pool structure will remain structurally sound for the period of time that the pool is owned by the Buyer.  The term structurally sound means that the swimming pool is capable of retaining water, and, in the event of failure to do so, Contractor will, within this period, repair the pool structure so that it will retain water. All pool equipment and accessories installed as provided for herein, carry a warranty as provided by the manufacturer of the same. When Buyer has work performed by others, Contractor does not warrant such work and Contractor shall not be held liable for such work or loss or damages, which may result therefrom.  Contractor warrants its labor associated with the installation of pool equipment and accessories for the period of one (1) year from the date of installation. Tile is limited to the warranty issued by the manufacturer; however, Contractor warrants all labor associated with the installation of tile for a period of one (1) year from the date of installation. Contractor may issue a new warranty that the pool structure will remain structurally sound to a second owner after a complete inspection by Contractor, instructions to such new owner, and payment to Contractor of inspection fee therefore.  There is no warranty if the total Agreement price is not paid in full or if the work supplied by Contractor is misused, abused, modified in any way. All warranty work shall be performed during normal business hours. The above warranties are effective only if Buyer has complied with all terms and conditions, payment and other provisions of the contract.  The warranties become void if: the pool is not kept full except for a 10-day maintenance period each year; if the pool structure is damaged by reason of the water rising above the lowest point of the pool when the pool is not kept full, or by reason of any earth or fill ground movement, acts of God, war, riots, or other civil disturbances, acts of others; or if there was a transfer or change of ownership of the real property on which the pool is located. Defects or failures resulting from mistreatment or neglect by Buyer will be repaired or serviced at Buyer’s expense.  If Buyer has work performed by others that is not provided for in this contract, such as but not limited to, electrical panel changes, landscaping, erection of fences and retaining walls, Contractor does not warrant such work, and Contractor shall not be held liable for such work, or loss or damages which may result therefrom. The sole and exclusive remedy of the Buyer and the obligation of Contractor for the matter set forth herein whether on warranty, contract, negligence or strict liability, is the repair of the defect.  Contractor shall in no event be liable for special or consequential damages. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR WILL NOT BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES AND ANY CLAIM AGAINST CONTRACTOR OR ITS AGENTS, OFFICERS, AND EMPLOYEES SHALL BE LIMITED TO THE REPLACEMENT VALUE OF ITS WORK AND ONLY IF SUCH WORK IS FOUND TO BE DEFECTIVE. CONTRACTOR SHALL PROVIDE NO WARRANTY ON CUSTOMER’S OWN SUPPLIED MATERIALS OR WORK OR MATERIAL PROVIDED BY CUSTOMER’S CONTRACTORS OR AGENTS.

(9) JOB COSTS/INCREASES/AVAILABILITY.  Customer shall reimburse Contractor for all fees incurred in connection with permits necessary for the work. If material or equipment, which Contractor is required to furnish under this Agreement, becomes unavailable, either temporarily or permanently, subsequent to the execution of the Agreement, through causes beyond the control and without the fault of Contractor, then in the case of temporary unavailability, the Agreement time shall be extended in writing for such period of time as Contractor shall be delayed by such unavailability; and in the case of permanent unavailability, Contractor shall be excused from the requirement of furnishing such work. The Customer agrees to pay Contractor any increase in cost of the material or equipment or furnishing which has become permanently unavailable and the cost of the closest substitute which is then reasonably available. If any changes are made by altering, adding to or deducting from the work, the Agreement price shall be adjusted accordingly.

(10) PRIOR AGREEMENTS/AMENDMENTS. This Agreement contains the entire agreement between the parties and supersedes and replaces any and all prior agreements, whether oral or written.  The Agreement may only be amended or modified by a written agreement executed by all parties. Oral representations may not be relied on. The Customer signing this proposal and Agreement represents he/she is authorized by or is the lawful owner of the property where the work is being performed. Failure to enforce all or any of the terms or conditions of this Agreement shall not be interpreted as a waiver of their continuing effect thereof.

(11) LIMITATION OF LIABILITY.  Contractor’s liability in any action related to this Agreement or the work performed hereunder, shall in no event exceed the amount of the Agreement and such liability may be fully discharged by a reimbursement of any payments received by Contractor under this Agreement. This limitation of liability is expressly intended to apply to all types of claims, including but not limited to claims for Contractor’s own negligence. Notwithstanding anything else to the contrary. Contractor shall have no liability or responsibility for any damages caused by others or for damages either before commencement of, or during the said work, or after said work, caused by structural faults, strikes, war, Acts of God, sudden rain, wind storms, vandalism, theft or any event beyond its reasonable control. Contractor shall not be liable for any damages resulting from the incompatibility with the Customer’s existing conditions. Any interruption in the work agreed upon in this Agreement which results in lost time and is not the fault of Contractor, or which is beyond the reasonable control of Contractor, will be billed to the Customer as an extra cost according to time lost.

(12) RIGHTS, RESPONSIBILITIES AND DISCLAIMERS.

  1. Contractor disclaims responsibility for conditions which are hidden or otherwise not reasonably discoverable by Contractor, and for variations in color, texture, graining, veining and finish. Exact matches are not guaranteed.
  2. Customer acknowledges and agrees that its failure to make timely payments to Contractor shall constitute a material breach of this Agreement.
  3. Customer shall be responsible for all preparations necessary and preliminary to Contractor’s work.
  4. It is understood and agreed that Contractor shall receive written notice of any breach, default or failure to perform, specifying in detail Contractor’s unsatisfactory performance and providing a reasonable opportunity for Contractor to cure such unsatisfactory issue, and Contractor must fail to commence and diligently pursue a cure, before Contractor shall be considered in breach or default, or be terminated for cause, and before Customer may take over the Work or withhold payments from Contractor.
  5. Any controversy or claim shall be resolved by first submitting same to mediation before an impartial mediator selected by both parties (who shall equally share the mediator’s fees and costs). Mediation to take place in Miami-Dade County, Florida.
  6. The prevailing party in any action taken by a party to this Agreement to enforce or interpret the terms of this Agreement shall recover its reasonable legal fees and costs from the other party.
  7. If Customer fails to comply with these terms and conditions or if Customer’s credit becomes unsatisfactory in Contractor’s sole discretion, then Contractor reserves the right to terminate, suspend or slow its work upon notice to Customer.
  8. Customer certifies it is financially solvent and it will immediately advise Contractor if it becomes insolvent or unable to promptly pay its bills.
  9. Customer agrees to advise Contractor in writing of any changes in ownership of any Customer entity or of the property upon which Contractor is performing its work within 5 days of such change.