Onex Inc. Construction Agreement
THIS AGREEMENT is made this day of , 20 , between Onex, Inc., a Pennsylvania corporation having a place of business at 2225 Colonial Avenue, Erie, Pennsylvania 16505 (“Onex”) and , having a place of business at
IN CONSIDERATION of the mutual promises contained herein and intending to be legally bound, the parties agree as follows:
1.Scope of Agreement
- Engagement. Owner hereby engages Onex to perform the Work set forth in the Scope of Work, attached hereto as Exhibit A and incorporated herein by reference, pursuant to the terms of this Onex accepts such engagement. The Work shall be performed at the site set forth in the Scope of Work.
- Independent Contractor Status. Onex is an independent contractor of Neither Onex nor any of the persons furnishing materials or performing work or services which are required by this Agreement are employees of Owner within the meaning of any federal, state, or local industrial, labor, or other law.
- Scope. All Work shall be supplied pursuant to this The provision of any materials or goods by Onex as part of this Agreement shall be governed by Onex’s thencurrent Terms and Conditions for the Sale of Goods, which are incorporated herein by reference. Owner acknowledges that Onexs’ Terms and Condition have been provided and reviewed or have been provided the opportunity to review such Terms and Conditions and agrees to be bound thereby.
- Enforceability. This Agreement shall become legally enforceable upon the earlier of (a) delivery of a signed acknowledgement; (b) commencement of performance by Onex; or (c) delivery of any materials or other goods by Onex to the job Any acceptance of this Agreement is limited to the express terms of the offer contained in this Agreement.
2.Performance of the Work
- Unless expressly provided to the contrary in the Scope of Work, Owner shall be solely responsible for providing all specifications, drawings, and other elements for the Work to be performed (the “Specification”). Owner shall be solely responsible for any and all discrepancies, omissions, or ambiguities in any Specifications provided by Owner or any agent or contractor of Owner or the failure of any such Specifications to be suitable for Owner’s purposes. In the event that Onex should discover any discrepancy, omission, or ambiguity in any Specifications provided by Owner or any agent or contractor thereof, Onex may, in its sole discretion, delay any or all of the Work until such time as Owner has provided such clarification
as to the discrepancies, omissions, or ambiguities as Onex may reasonably require. In the case of any such delay, the deadline for Onex to complete the Work or any portion thereof shall be extended by the length of the delay.
- Engineering or Design Services. In the event that the Scope of Work provides for Onex to furnish engineering or design services, Onex shall provide Owner with the Specifications generated as part of the furnishing of such engineering or design Owner shall then be responsible for reviewing the Specifications furnished by Onex, identifying any discrepancies, omissions, or ambiguities in those Specifications, and ensuring that the construction contemplated by those documents is suitable for Owner’s purposes within a reasonable period of time, but in no event at least five business days prior to Onex beginning the portion of the Work in question.
Owner shall be responsible for any and all discrepancies, omissions, or ambiguities in Specifications or failure of Specifications to be suitable for Owner’s purposes after Owner either
(a) approves the Specifications or (b) fails to provide objections to those Specifications within a reasonable period of time.
- Procedure for Notification of Completion of the Work. When Onex completes the Work or any discrete part thereof, Onex may give Owner notice Within fourteen (14) days
after receipt of such notice, Owner shall inspect the Work and determine if it has been completed in accordance with the Scope of Work, Specifications, and this Agreement; if so, Owner shall promptly advise Onex in writing of its final acceptance thereof. In the event of any defect in the Work, Owner shall immediately notify Onex of the defects.
Onex shall not be responsible for any defect in Work not identified by Owner within seven (7) days of Onex providing notice of completion as set forth above.
- Subcontractors. Onex may engage such subcontractors as it reasonably believes are necessary to complete the Owner shall ensure that such subcontractors are provided such access as they require to the project site to perform the Work and shall not impede them in the completion of the Work.
3.Schedule of Work
The Work shall be completed within the timeframes as provided in the Scope of Work. In the event that Onex is delayed in completing the Work or any part thereof for reasons beyond the control of Onex, the deadlines shall be extended by the amount of time of such delay. Onex shall use commercially reasonable means to ensure completion of the Work in accordance with the Scope of Work.
All notices required under this Agreement shall be sent by either party to the other by certified mail, return receipt requested, to the following addresses:
To Onex: 2225 Colonial Avenue, Erie, Pennsylvania 16505
To Owner: .
Either party may, after written notice to the other, designate a different address for delivery of written notices.
- Time of Payment. Onex shall, from time to time, in accordance with the Scope of Work, submit invoices to Owner showing the Work for which payment is sought and the amount of payment Owner shall, within thirty (30) days of the date of such invoice, make payment to Onex of the amount set forth in the invoice.
- Withholding Payment Due to Default. Owner may not withhold payment from Onex due to any alleged deficiencies in the Work performed with respect to any portion of the Work as to which (a) Owner has approved; (b) Owner has failed to object to within fourteen (14) days as set forth in paragraph 03 above; (c) Owner has objected, but which Onex has completed in accordance with this Agreement, the Scope of Work, and the Specifications; or (d) Owner has objected and Onex has remedied the Work so that it conforms to the Agreement, the Scope of Work, and the Specifications.
In the event any payments otherwise due are lawfully withheld in accordance with the terms of this Agreement, Owner shall notify Onex of the event of default causing said withholding.
Owner shall promptly pay Onex for all portions of the Work which have been completed in accordance with this Agreement, the Scope of Work, and the Specifications notwithstanding Owner’s objections to any other portion of the Work.
By signing this Agreement, Onex represents and warrants that it has procured the insurance coverages indicated in the Scope of Work. Onex shall provide Owner with certificates evidencing the insurance coverages indicated in the Scope of Work and naming Owner as an additional insured only upon request by Owner. Onex shall maintain during the term of this Agreement the insurance coverages listed in the Scope of Work.
Onex warrants for a period of one year from the date of final acceptance of the Work by Owner (or in the case of replacements, correction, or cure of defects made pursuant to this Agreement, after final acceptance thereof by Owner) (the “Warranty Period”), that all material furnished and all Work performed under this contract will substantially conform to the Agreement, the Scope of Work, and the Specifications.
ONEX EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WORKMANLIKE CONSTRUCTION.
In no event shall Onex be responsible for ensuring that the completed Work complies with or conforms to any federal, state, local, or other applicable laws or regulations.
- Changes. Owner may propose changes to the Specifications by proposing a Change Order detailing the additional Work to be performed and any changes in the total contract price and deadlines contained in the Scope of Any Change Order shall become effective only when a written document describing and authorizing such change is delivered to Onex by Owner and approved in writing by Onex.
In no event shall Onex be obligated to undertake any additional Work beyond the scope of this Agreement, the Scope of Work, or the Specifications without the execution of a written Change Order by Onex.
- Changes Without Change Order. If unforeseen circumstances, including without limitation defects in the Specifications, conditions of the site where the Work is to be performed, or other conditions beyond the control of Onex, require a change in the work to be performed, Onex may, at its sole option, perform any additional Work that is reasonably necessary to complete the project contemplated by the Agreement, Specifications, and Scope of Work or is requested by Owner without a Change In such an event, Onex shall be entitled to increase the contract price, and Owner shall be obligated to pay, any additional costs incurred as a result of such additional Work on a time and materials basis, including provision for commercially reasonable profit.
- Survival of Other Terms. All terms and conditions of this Agreement which are not amended by a Change Order shall remain in full force and
Neither party shall be liable for nonperformance or delay in performance due to acts of God, acts or demands of any government or agency thereof, strikes, fires, floods, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence, provided that the party not performing or delaying its performance notifies the other of any such occurrence within a reasonable amount of time of the occurrence.
10.Covenants of Owner
- Publicity of Relationship. Without prior written consent of Onex, Owner shall not in any manner advertise or publish the fact that it has contracted to perform the Work for
- Assignment and Delegation. Owner shall not assign this order nor delegate any duties hereunder without Onex’s prior written consent, and any such attempted assignment shall be
- Compliance with Laws. Owner shall comply with all Federal, State, and local laws, rules, and regulations that may be applicable to this Agreement and, at the request of Onex, Owner will furnish certificates to the effect that it has complied with said laws and
- Casual Overtime. The Onex shall perform the Work on a straighttime basis, employing
a sufficient work force to work a normal 40hour workweek of five 8hour days including Casual Overtime (hereinafter defined) as may be required. “Casual Overtime” is defined as overtime of the type required to complete the ordinary work of the day. No charge shall be made in the Contract Price for such Casual Overtime and no overtime work other than Causal Overtime shall be scheduled without Owner’s approval.
- Protection of Work, Materials, and Equipment. Onex may, during the course of the Work, be required to leave materials, equipment, or other items at the project Owner shall be responsible for ensuring that such materials, equipment, and other items are adequately protected from theft, damage or deterioration. All requests by Onex to enclose or otherwise protect such property shall be complied with promptly at no cost to Onex.
Owner shall not be entitled to setoff at any time of any sums owed by Onex to Owner against sums payable by Owner under this Agreement.
12.Indemnity and Limitation of Liability
- Indemnity Against Personal and Property Injury Claims. Owner agrees to defend, indemnify and hold harmless Onex, and its agents and employees, from and against any claim, cost, expense, or liability (including attorney’s fees), attributable to bodily injury, sickness, disease, or death, or damage to or destruction of property (including the loss of use thereof), caused by, arising out of, resulting from or occurring in connection with the performance of the Work by Onex, its contractors, or their agents or employees, whether or not caused in part by the active or passive negligence, gross negligence, or other fault of a party indemnified Owner’s obligation hereunder shall not be limited by the provisions of any workmen’s compensation or similar act.
- Limitation of Liability. Onex and its consultants, partners, agents and employees, shall not be liable to the Owner, whether jointly, severally or individually, in excess of the compensation paid to Onex under this Agreement, as a result of any negligence, gross negligence, or other act or omission not amounting to a willful or intentional Owner hereby agrees that to the fullest extent permitted by law, Onex shall not be liable to Owner for any special, indirect or consequential damages whatsoever, whether caused by Onex’s negligence, gross negligence, errors, omissions, strict liability, breach of contract, breach of warranty or other cause or causes whatsoever, including but not limited to, loss of use of equipment or facility, and loss of profits or revenue.
- Merger. This writing, including the Specifications and the Scope of Work constitutes the entire agreement between the parties and there are no understandings or representations not contained In the event of a discrepancy between the Scope of Work and this Agreement, the Scope of Work shall control.
- Amendment and Waiver. Unless otherwise permitted hereunder, neither this writing nor any Exhibits attached hereto or any provisions hereof may be amended, modified, waived, discharged, terminated or rescinded orally or by the course of performance, course of dealing or usage of trade but only by (a) a writing executed by the party against which enforcement of the amendment, modification, waiver, discharge, termination or rescission is sought; or (b) by written notice to the party against which enforcement of the amendment, modification, waiver, discharge, termination, rescission is sought which notice is not objected to by that party within ten days of receipt of such
- Successors. This writing shall be binding upon and inure to the benefit of the successors, permitted assigns, heirs and personal representatives of the parties
- Headings. The headings herein are for convenience of reference only and do not define or limit the provisions
- Venue and Choice of Law. This writing shall be construed and enforced in accordance with the laws of the Commonwealth of Venue for any dispute arising hereunder shall be proper exclusively in the courts located in Erie County, Pennsylvania.
- Severability. The provisions of this writing shall be severable so that the invalidity, unenforceability, or waiver of any such terms shall not affect the remaining provisions
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above.
917 Bacon Street
Erie, PA 16511
1308 Main Street
Crescent, PA 16406