STANDARD OF CARE.  When performing its services, Foreman Construction, Inc. (“FOREMAN”) will use that degree of care and skill ordinarily exercised under similar circumstances by members of its profession practicing in the same locality at the same time and providing the same or similar services. Owner recognizes that actual conditions may vary from those encountered at locations where tests, borings, surveys, or explorations are made by FOREMAN or provided by others, and that FOREMAN’s data, interpretations, and recommendations are based solely on information available to FOREMAN that it deems reliable and material to the performance of its professional services. FOREMAN shall not be responsible for the interpretation by others of information developed or relied upon by FOREMAN. Owner recognizes that observation of construction by a qualified engineering firm is essential to verify that designs are appropriate for actual site conditions. Except for FOREMAN’s employees acting within the scope of their employment, and contractors and subconsultants retained by FOREMAN acting within the scope of their retention by FOREMAN, Owner agrees that FOREMAN shall not be responsible for any acts or omissions of any contractors, consultants, and suppliers, or other persons, whether for site safety, quality of work, or failure to furnish or perform work in accordance with contract documents. The Parties agree that the services and information provided by FOREMAN are solely for the Owner’s guidance, and to the extent that the Owner provides information from FOREMAN to third parties for services, Owner will first require the third party, by contract, waiver, or otherwise, to agree that FOREMAN owes no duty in contract, tort, or otherwise to the third party for any services or information provided by FOREMAN to Owner, whether related to FOREMAN’s design, investigation, construction administration, or any other services. 

FOREMAN’S WARRANTY.  FOREMAN warrants that the Work will be in accordance with the Contract Documents and free from material structural defects and will return and repair any Work not in accordance with the Contract Documents for a period of 12 months from the date of Substantial Completion (the “Warranty Period”).  Except as provided otherwise in the Contract Documents, the Work will be performed in accordance with the standards set forth in the National Association of Home Builders Residential Construction Performance Guidelines for Professional Builders and Remodelers.  All product warranties that extend beyond the Warranty Period, if any, are deemed assigned from FOREMAN to Owner and Owner will contact the respective manufacturer or distributor directly following the end of the Warranty Period.  For the avoidance of doubt, there shall be no warranty on the Work if this Agreement is terminated prior to Substantial Completion.   If a defect is discovered within the Warranty Period, then Owner must promptly notify FOREMAN in writing following the discovery of that defect and must provide FOREMAN with an opportunity to inspect and an opportunity to either cure the defect in a manner customary in the industry or to pay to Owner the cost of repair or replacement of the defect as estimated by FOREMAN.  In no event will FOREMAN’s liability exceed the fair and reasonable cost of repair or replacement of the warranted defect. FOREMAN will not be liable for any cost or expense incurred by Owner in remedying any warranted defects unless FOREMAN has been promptly notified in writing and has been afforded the opportunity to cure the claimed defect.  

FOREMAN INSURANCE, INDEMNITY, AND LIMITATIONS.  FOREMAN represents and warrants that it maintains worker’s compensation, general liability, property damage, and professional liability insurance. Certificates for all such policies of insurance can be provided to the Owner upon written request. Subject to the terms, conditions, coverage, and limits of sch insurance, for any claim by a third party, FOREMAN agrees to indemnify Owner from and against any claim, loss, damage, or liability to the extent caused by negligent acts of FOREMAN, its agents, staff, consultants, or contractors employed by FOREMAN. FOREMAN shall not be responsible for any claim, loss, damage, or liability to the extent such claim, loss, damage, or liability is not covered by FOREMAN’s insurance. FOREMAN shall not be responsible for any claim, loss, damage, or liability arising from any negligent acts by Owner, its agents, its staff, its representatives, or other contractors or consultants. Notwithstanding any other provisions, Owner agrees that the total liability for any claims, losses, and/or damages against FOREMAN, its officers, directors, employees, agents, contractors, or consultants arising from or in any way relating to, directly or indirectly, FOREMAN’s professional or other services, shall be limited to the greater of $50,000 or the amount of the fee actually paid FOREMAN for its services under this agreement.

OWNER’S INSURANCE POLICY.  Owner will procure and maintain throughout the term of this Agreement at Owner’s sole expense, homeowner’s insurance that covers any damage to existing property or structures during performance of the Work.  Prior to commencement of the Work, Owner will add FOREMAN as an additionally insured to such insurance policy and provide Contractor with a copy of the applicable certificate(s).  FOREMAN recommends that Owner consult with its insurance provider to determine the appropriate amount of personal liability or homeowner’s insurance coverage.  Owner acknowledges that FOREMAN is not responsible for providing any such coverage or making any suggestions with respect thereto.

RIGHT OF ENTRY.  Unless otherwise agreed in writing, to the extent it is necessary for FOREMAN to enter onto property in order to perform its services, Owner shall furnish right of entry on the land sufficient for FOREMAN to perform its services. FOREMAN has not included in its fee costs for rectifying damages that may result from FOREMAN’s operations. If FOREMAN is required to restore the property to its former condition, Owner shall be responsible for such costs to cover the restoration work, including FOREMAN’s standard markup. Owner agrees that the direction and supervision of the working forces, including subcontractors, rest exclusively with the FOREMAN, and Owner agrees not to issue any instructions to, or otherwise interfere with the same.  Owner shall at any reasonable time have the right to inspect the Work.  FOREMAN shall not be responsible for any injury to Owner during said inspections.   

SAFETY.  FOREMAN and its subcontractors will take all reasonably necessary safety precautions, including compliance with applicable laws, ordinances, regulations, and orders issued by a public authority, whether federal, state, or local. FOREMAN will at all times be responsible for providing a safe Project Site and be responsible for the performance of the Work and safety of all employees, personnel, equipment, and materials within the care, custody, or control of FOREMAN or its subcontractors.  FOREMAN and its subcontractors will furnish all required safety equipment and ensure all employees have and wear personal protective equipment in compliance with applicable safety requirements.  FOREMAN may store materials, tools, and equipment on site during construction. FOREMAN will keep the job site in a clean condition consistent with normal construction practices and will leave the Project Site in a broom clean condition at the time of Substantial Completion.  Owner will notify FOREMAN in advance of any site-specific safety concerns of which Owner may be aware.

CONSTRUCTION OBSERVATION.  If construction observation is included in FOREMAN’s proposal, FOREMAN shall visit the project site at such intervals and for such durations as it deems appropriate, or as otherwise agreed to in writing. Such visits and observations, and any comments or reports generated from such visits and observations, shall not impose any liability on FOREMAN beyond that set forth in this agreement, or relieve any contractor from its contractual obligations. All construction contractors shall be solely responsible for construction site safety, the quality of their work, and adherence to the contract documents. FOREMAN shall have no authority or obligation to direct any contractor’s actions or stop any contractor’s work. Further, unless specifically agreed in writing, Owner agrees that FOREMAN shall have no duty or responsibility for performing, furnishing, implementing, supervising, or evaluating any designs for the project. Owner agrees that FOREMAN’s services under this agreement are not performed pursuant to a special agreement under Michigan law.

HAZARDOUS MATERIALS.  Owner represents that it has made a reasonable effort to evaluate whether hazardous materials, including gases, are on or near the project site, and that Owner shall inform FOREMAN in writing of any presence of such materials. Hazardous materials may exist at a site where FOREMAN has no reason to believe they could or should be present. FOREMAN and Owner agree that the discovery of unanticipated hazardous materials constitutes a changed condition mandating a renegotiation of FOREMAN’s scope and contract price, and otherwise permits FOREMAN to terminate the contract, at FOREMAN’s sole discretion. FOREMAN and Owner agree that hazardous materials may make it necessary for FOREMAN to take immediate measures to protect health and safety. Owner agrees to compensate FOREMAN for any costs, damages, or liability of any nature, equipment decontamination, and any other costs incident to the discovery of hazardous materials. FOREMAN agrees to notify Owner when hazardous materials or suspected hazardous materials are encountered. If Owner does not own the project site, it is Owner’s responsibility to inform the property owner of the discovery of hazardous materials or suspected hazardous materials.  Notwithstanding any other provisions of the agreement, Owner waives any claim against FOREMAN for claims, losses, damages, liabilities, and costs (including, without limitation, court costs and attorneys’ fees) arising out of, or in any way connected with, the presence, discharge, release, escape, or reporting of hazardous materials or suspected hazardous materials, including, but not limited to, any costs created by delay of the project and any cost associated with possible reduction of the property’s value. To the maximum extent permitted by law, Owner agrees to defend, indemnify, and hold harmless FOREMAN from any claims, losses, damages, liabilities, and costs (including, without limitation, court costs and attorneys’ fees) arising out of, or in any way connected with, the presence, discharge, release, escape, or reporting of hazardous materials or suspected hazardous materials, including, but not limited to, any costs created by delay of the project and any cost associated with possible reduction of the property’s value. Owner will be responsible for proper disposal of any samples secured by FOREMAN which FOREMAN deems to be contaminated.

BIOLOGICAL POLLUTANTS.  Unless specifically stated in its proposal, FOREMAN’s scope of services does not include the investigation or detection of the presence of any Biological Pollutants in or around any structure. Owner agrees that FOREMAN shall have no liability for any claim regarding bodily injury or property damage alleged to arise from or be caused by the presence of or exposure to any Biological Pollutants in or around any structure. Owner shall defend, indemnify, and hold harmless FOREMAN from any third-party claim for damages alleged to arise from or be caused by the presence of or exposure to any Biological Pollutants, except for damages arising from or caused by FOREMAN’s sole negligence. The term “Biological Pollutants” includes, but is not limited to, molds, fungi, spores, bacteria, and viruses, and the byproducts of any such biological organisms.

UTILITIES.  In the execution of its services, FOREMAN will take reasonable precautions to avoid damage or injury to subterranean structures or utilities made known to FOREMAN in writing by Owner or a public utility locating service. Owner agrees to defend, indemnify, and hold harmless FOREMAN for any damages to subterranean or other structures or property that are not called to FOREMAN’s attention and correctly shown or described on documents furnished.

NON-SOLICITATION.  Owner agrees that during the course of its engagement with FOREMAN and for a period of one (1) year after that relationship ends, regardless of the reason for separation, Owner will not, directly or indirectly, either as an owner, employee, salesperson, consultant, director, independent contractor, or in any other capacity, solicit, entice, induce or encourage any employee to leave employment with FOREMAN.

OWNERSHIP OF DOCUMENTS.  All reports, drawings, plans, specifications, field data, field notes, calculations, estimates and other documents prepared by FOREMAN shall be deemed instruments of service.  Provided that Owner fulfills its contractual obligations, FOREMAN grants Owner a nonexclusive license to use instruments of service solely on this project, and Owner recognizes that the instruments of service shall remain FOREMAN’s property. Electronic data, including, but not limited to, CADD drawings, databases, word processor documents, and/or spreadsheets, are provided as an accommodation only. Paper documents are the contract deliverables. Owner assumes the risk that electronic data may differ from the paper deliverables, due to inaccurate translations or unreadable files. Owner agrees to hold harmless, defend, and indemnify FOREMAN for any changes or modifications made by to the electronic data, or for any use of the instruments of service for any other project. Owner agrees that all reports and other work product furnished to the Owner or its representatives, will be returned upon demand and will not be used by the Owner for any purpose whatsoever, unless otherwise specifically agreed by FOREMAN. FOREMAN will retain records relating to the services performed that FOREMAN decides to retain in its sole discretion for a period of five (5) years following submission of the report, during which period the records will be made available to the Owner at reasonable times for a reasonable fee.

PAYMENTS.  Unless otherwise agreed to in writing by Foreman, invoices will be submitted to the Owner monthly and a final invoice will be submitted upon completion of FOREMAN’s services. Each invoice is due upon presentation and is past due thirty (30) days from the invoice date. Owner agrees to pay FOREMAN the time-price differential of 1 ½% per month on past due accounts, plus any costs and attorney fees incurred in recovering the late payment. FOREMAN reserves the right to suspend or terminate the contract for cause upon failure of Owner to timely pay FOREMAN’s invoices when due.

DISPUTES.  Owner agrees that any claims against FOREMAN, whether based on contract, tort, or otherwise, must be commenced in court or arbitration before the expiration of any applicable statutes of limitations and/or statutes of repose, or within one year following the completion of FOREMAN’s services under this agreement, whichever is earlier; otherwise such claims are barred and/or waived. The parties agree that any legal proceedings between the parties shall exclusively be brought, at FOREMAN’s sole discretion, in either arbitration in Michigan or in a Michigan court.  Should FOREMAN select the legal proceedings to be in a Michigan court, then the parties agree to a bench trial, and the parties hereby waive any right to a trial by jury. Should FOREMAN select the legal proceedings to be in arbitration, the arbitrator shall be selected pursuant to American Arbitration Association’s (“AAA”) List and Appointment procedures, the arbitration shall be conducted in accordance with the AAA Construction Rules, and any arbitration award shall be final and binding. Should FOREMAN prevail in the legal proceedings between the parties, FOREMAN shall be entitled to recover from Owner all attorney fees and costs incurred in the legal proceedings (including for an appeal, enforcement of an award or judgment, and FOREMAN staff time charges). 

TERMINATION.  Unless otherwise stated in writing, in the event of a material breach, this agreement may be terminated for cause by either party after providing an opportunity to cure pursuant to fourteen (14) days’ written notice. A material breach shall include Owner’s failure to timely pay an invoice, suspension of a project for 60 days or more, or initiation of bankruptcy proceedings. Upon a proper termination for cause, the nonbreaching party shall be entitled to recover all damages permitted under Michigan law. If a termination for cause by FOREMAN is deemed improper or wrongful, then the termination shall be treated as a termination for convenience. Either party may terminate the contract for convenience by providing seven (7) days’ written notice to the other party.  Upon a termination for convenience, Owner shall pay FOREMAN all costs incurred through the date of delivering the termination, plus any reasonable costs incurred due to the termination.  

WAIVER OF CONSENTIAL AND OTHER DAMAGES.  Both parties waive any rights to recover against the other party consequential damages arising out of or relating to this agreement and/or FOREMAN’s services. This mutual waiver includes damages incurred by Owner for rental expenses, losses of use, income, profit, financing, business and reputation, and loss of management or employee productivity or of the services of such persons; and damages incurred by FOREMAN for losses of financing, business and reputation, and loss of profit on other projects.   The Parties further waive their respective rights against the other to recover for damages of loss caused by fire or other perils that are covered by such insurance or any other insurance to the extent that such insurance or other insurance is valid and collectible.

NON-ASSIGNMENT.  The Owner shall assign any of its duties, rights, or interest in this agreement without the prior written consent of FOREMAN. Nothing in this agreement shall be construed to create, impose, or give rise to any duty owed by FOREMAN to any third party. All duties undertaken under this agreement by FOREMAN are for the sole and exclusive benefit of Owner. There are no intended third-party beneficiaries of this agreement or of the services to be performed by FOREMAN under this agreement. However, notwithstanding the foregoing, this Agreement and all of the Parties’ obligations are binding upon any respective successors and assigns, and together with the rights and remedies of the parties under this Agreement, inure to the benefit of the parties and their respective successors and assigns.

CONTRACT DOCUMENTS.  Owner agrees that these Standard Terms and Conditions shall prevail over any conflicting provisions of any other contract documents, except for FOREMAN’s written proposal. The contract documents shall consist of these Standard Terms and Conditions, FOREMAN’s proposal to Owner, and any documents attached to such proposal or referenced in such proposal as being a part of the basis upon which FOREMAN has agreed to undertake services. All other understandings, discussions, agreements, proposals, correspondence, electronic mail and other communications of any descriptions pre-existing this agreement are superseded by this agreement. This agreement constitutes the parties’ complete, entire, and final understanding of the subject matter of this agreement. The parties agree that the agreement has been negotiated between the parties, and that no provision or ambiguity should be interpreted against the other party as a drafter of the agreement.  

SEVERABILITY.  If any provisions of this agreement are found to be void or unenforceable for any reason, the remainder of this agreement shall continue in full force and effect, and the court shall attempt to judicially reform the void or unenforceable provisions to the maximum extent possible, consistent with the intent evidenced by the provisions, to render it valid and enforceable. If the court is unable to reform the provisions, the court shall strike only those provisions which are invalid or unenforceable, and this agreement shall then be construed without reference to the void or unenforceable provisions. The parties further agree that any waiver by the parties of any contract requirement shall not be deemed an abandonment of the contract. 

NOTICES.  All notices, requests, and other communications that are required or may be given under this Agreement must be in writing, and will be deemed to have been given on the date of delivery, if delivered by hand or courier, or 3 days after mailing, if mailed by certified or registered mail, postage prepaid, return receipt requested, addressed as set forth in the Proposal or Contract Documents.

CONTROLLING LAW.  This Agreement will be construed under and governed by the laws of the State of Michigan.