Motion for Summary Adjudication in Remedy Roofing, Inc. VS. Javier Perez| Trellis.Law

On March 23, 2022 a Party Discovery was filed involving a dispute between Remedy Roofing, Inc., and Perez, Javier, for All Other Civil Cases (OCA) in the District Court of Hidalgo County.

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Masmr Elllé’
Award-winning roofing company
Licensed & Insured for your protection
888 HAIL PR0 - 888—424—5776
www.remedyroofing.com AWREDH'ED
DVSNEIS ROOFING COW
ASSOCIATION OFTEXAS
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NA'I10NAL ROOFING
COMMONS ASOCIKTDN

Job Number: MCA—80006

RESPECTFULLY SUBMITTED TO:

Javier Perez

First & Last Name
405 South Woodland Drive, Pharr, TX 78577

Street / City / State / Zip

(956) 223—7843

Telephone Alternate number

WORK TO BE PERFORMED AT:

405 South Woodland Drive, Pharr, TX 78577

Street / City/ State / Zip

Material Location

REMEDY ROOFING, INC. - PAGE OF
l 16
SCOPE OF WORK
— Tear off of existing Wood Shake Shingles
— Installation of 7/16" OSB over entire deck - “re-deck"
- Installation of Tarco Synthetic underlayment
— Installation of 2"x2" pre-ﬁnlshed drip edge
- Installation of roof flashings as per manufacturer specifications
- Installation of new custom fabricated 26 gauge — Standing Seam Metal Panels - (COLOR— TBD by Owner prior installation)
- Installation of Ridge/Hip panels as per manufacturer speclﬂcations
- Installation of all ve nts/plumbing stack ﬂashing as per speciﬁcations
— Rooﬁng debris to be hauled

- Includes 2 yr Workmanship Warranty by Remedy Rooﬁng

Notes:
” You and Remedy Roofing agree that Remedy will perform the roof replacement as per your Insurance carrier authorization, for a price equal to the
replacement cost value determined by your Insurance carrier. Total on Contract to be revlsed according to Remedy Rooﬁng and your Insurance carrier agreeing
on a Final replacement cost value (RCV) total. Including all Supplements approved for the work completed by Remedy Roofing“

REMEDY ROOFING, INC‘ - PAGE 2 OF 16
BUILDING CODE & BEST PRACTICE
Building Codes 0nd good building practices require that oir conditioning, water and electric lines and pipes
be located c1 safe distance below the roof decking. You agree that Remedy Roofing, Inc. is not responsible
for nail penetrations to air conditioning, water or electric lines or pipes that ore located less than 3” below
the bottom surface of the roof deck or ony resulting damages. It moy be necessary or prudent to remove
roof—mounted equipment, including e.g. satellite dishes, antennas, solar panels, weather stations, etc. You
agree to remove and reinstalI/adjust such equipment at your costs. Remedy Roofing, Inc. may remove
such equipment if you foil to do so, but will hove no obligation to reinstall or align the equipment, including
satellite dishes.
J.~P.

Customer (Initial)

TERMS AND CONDITIONS

You hove read 0nd agree to the terms and conditions as outlined in this document.

J._-'P-

Customer (Initial)

RESIDENTIAL CONSTRUCTION CONTRACT DISCLOSURE STATEMENT
This Contract is c1 as defined in Section 53.001 of the Texas Property Code.
residential construction contract
By Owner’s the space provided below, Owner acknowledges delivery and receipt of the disclosure
initials in
statement required for residential construction contracts in accordance with Section 53.255 of the Texas
Property Code. A copy of this disclosure statement is attached to this Contract cs on addendum.

JP.
Customer (Initial)

REMEDY ROOFING, INC. - PAGE 3 OF l6
PROJECT PRICE

Total Proposal Price $ 49148.26

Due Upon ACCeptOnCG $ TBD-to be collected when material is delivered

§
Due Upon Completion $
\

Respectfully Submitted By:
Joshua Rodriguez

Remedy Roofing, Inc. Sales Rep

Remedx
0W9
Roofing, Inc. Sales
uez
Rep (signature)

J
956 563-9538

Soles Rep Cell No.

By signing this contract, acknowledge
I all terms 0nd conditions.

”Know Your Rights and Duties”: You, the buyer, may cancel this transaction at any time before midnight of the third
business day after the date Qf this transaction. See the attached notice of cancellation form for on explanation 0f
this right.

Javier Perez
10/27/2021
‘Hémeown er Signature Date Homeowner

Homeowner Signature Date Homeowner

REMEDY ROOFING, INC. - PAGE 4 OF 16
REMEDY ROOFING, INC. CONTRACT
THISDOCUMENT CREATES IMPORTANT LEGAL OBLIGATIONS THAT YOU SHOULD UNDERSTAND PRIOR TO SIGNING.
YOU SHOULD READ IT THOROUGHLY AND IF YOU ARE UNCERTAIN OR HAVE QUESTIONS ABOUT YOUR RIGHTS,
OBLIGATIONS OR RESPONSIBILITIES UNDER THIS CONTRACT, CONSULT AN ATTORNEY.

l. PAYMENTS
A. INITIAL CASH PAYMENT - the commencement of the Work, Owner shall pay t0 Contractor 50% of the
Prior to
Total Contract Price the Total Contract Price (Initial Cosh Payment). Contractor may use the
os o portion of
Initial Cosh Payment in consideration for initial construction or pre—construction expenses, 0nd compensation

to Contractor for time 0nd effort expended. The Initial Cosh Payment shall be retained by the Contractor as
liquidated damages if this Contract is terminated for any reason other than a Contractor's Event of Default (cs
defined below). Contractor 0nd Owner agree that it is not possible to calculate the exact amount of damages
thot Contractor will suffer if this Contract is terminated for 0 reason other than Contractor’s default 0nd this
amount is c1 reasonable approximation of the damages. This amount is in no way a penalty 0nd does not
apply to the extent Chapter 58 of the Business & Commerce Code applies. See I(B).

B. DISASTER REMEDIATION — The following bold text only applies 1) the Contractor is performing disaster
if

remediation services on the Owner’s property with construction of the Improvements, 2) after the Governor
or county judge hos issued a disaster declaration for the county in which the Property is located, and 3)
Contractor hos not maintained a physical business address in the subject county or adjacent county for
0t least one year prior to the execution of this Contract. This Contract is subject to Chapter 58, Business &
Commerce Code. A contractor may not require a full or partial payment before the contractor begins work
and may not require partial payments in an amount that exceeds an amount reasonably proportionate to
the work performed, including any materials delivered. If applicable, this statutorily prescribed provision may
affect the Initial Cash Payment amount in Paragraph A above.

C. DRAW REQUESTS - Owner with requests (Draw Request)
During construction, the Contractor shall present
for payment (Drow Poyment[s]) by Owner. Each Draw Request shall reflect the Construction Costs (as defined
below) 0nd cmy compensation to Contractor for time 0nd effort expended in connection with this transaction
incurred up to the date the Draw Request is submitted to Owner. The Drow Request shall include the name
0nd address of each person who subcontracted directly with Contractor and who Contractor intends to pay
from the requested funds. Owner shall cause the Draw Payments to be made t0 Contractor within three (3)
business days following the receipt of a Draw Request. In the event of o Draw Payment delay, Contractor shall
hove the right to stop Work. Construction Costs ore deﬁned as oll costs incurred by the Contractor cs a result
of the Work, except for the following:

1. Salaries, wages, 0nd other compensation for the Contractor or the Contractor’s personnel stationed 0t
the Contractor's offices or 0t other sites not related to the Work.
Expenses 0nd operating cost of the Contractor's offices.
General overhead expenses of the Contractor.
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Marketing and promotional expenses of the Contractor.
Capitol 0nd bank expenses of the Contractor.
Any costs not directly related to the Work.

D. FINAL of the Total Contract Price, Change Orders, 0nd Allowances
PAYMENT - The Final Payment (the portion
as defined below not paid by previous payments) shall be due cmd payable upon Substantial Completion
(cs defined below). Unless otherwise provided, Owner 0nd Contractor agree that there will be no retainage of
funds.

E.Payments that are more than thirty (3O days late), which payments being due upon receipt of the invoice,
are subject to an 18% per unnum interest rate or whatever the highest rate is allowed by law.

REMEDY ROOFING, INC. - PAGE 5 OF 16
2. SUBSTANTIAL COMPLETION, INSPECTION, RELEASE AND OCCUPANCY

The Improvements ore substantially completed (Substantial Completion) when: 1) o certificate of occupancy
is issued or, 2) if no certificate of occupancy is required, when all electrical, mechanical, 0nd plumbing final

inspections, or all other required inspections, hove been approved or all approvals for occupancy hove
been received from ony applicable governmental authority or, 3) in the absence of the foregoing, when the
Improvements are suitable for occupancy; provided, however, that if Owner moves into the Improvements,
the Improvements shall be deemed to be substantially completed. At the time of Substantial Completion,
Owner will conduct c1 wclk—thru inspection of the Improvements with Contractor, and will execute 0nd deliver
to Contractor c1 ”Final Customer Wolk-Thru Approval 0nd Punch List" in the form attached hereto that confirms
Owner's inspection and acceptance of the Improvements, Owner’s acknowledgment that all construction
Work hos been completed in accordance with the Construction Documents, 0nd releases Contractor from all
claims 0nd liabilities except contractual warranty obligations arising under Contractor’s Express Limited Home
Warranty 0nd any agreed items of Work to be completed (Punch List Items). Contractor's failure to complete
Punch List Items shall not be 0 basis for Owner to withhold any payments otherwise due Contractor, 0nd,
although the Express Limited Home Warranty will be in effect 0t Substantial Completion, no work is required to
be performed by Contractor pursuant to the Express Limited Home Warranty until the Total Contract Price and
all payments set forth herein hove been paid to Contractor by Owner in full.

3. ALLOWANCES
For purposes of this Contract, Allowances include budgets for certain Work components shown in the
Construction Documents to be incorporated into the Improvements. The sums allocable to each listed
Allowance are included in the Total Contract Price. Unless otherwise noted in the Construction Documents,
each Allowo nce listed includes, without limitation, the component costs of material 0nd labor, any appropriate
soles tax, shipping Charges, or other costs associated with procurement. Selections of Allowance items will be
mode at suppliers typically used by Contractor to limit the possibility of unusual costs or delays. All overages
in expenditures from Allowance amounts will be treated os a Change Order (cs defined below). The Projected
Completion Dote will be automatically extended if Allowance items ore not selected within ten (10) days of
written notice from Contractor. Owner will verify all selections with the supplier 0nd provide Contractor with the
information for ordering. Owner understands that some
materials selected will hove o wide variation in color,
pattern, 0nd texture. The additional material or labor cost for any waste, spoilage, breakage, or culling shall be
applied to the Allowance for that item.

4. CHANGES
A. CHANGE ORDER PROCEDURE — Except cs otherwise stated in this Contract, no alterations, additions or deletions
will be made in the Work unless agreed to in writing by Owner and Contractor. To approve CI proposed Change,
both Owner 0nd Contractor sholl sign o written agreement (Change Order) in the form attached. In lieu of the
form, o written Change Order may also constitute on email exchange between Owner and Contractor in which
the Changes ore discussed 0nd acknowledged by the Parties. Upon receiving from Owner 0 written request
for any Change, Contractor will present Owner with o proposal for the changes including any additional price
of construction, additional Contractor's compensation, 0nd any extensions to the Projected Completion Date. If
Owner accepts Contractor’s proposal for changes, the Change Order will become a binding attachment to the
Construction Documents, 0nd to the extent o conflict between 0 Change Order 0nd the Construction Documents
exists, the terms of the Change Order shall control. Any Owner party may sign the Change Order as agent for
the other, 0nd the signature of one Owner shall be binding on oll others; 0n email from one Owner concerning 0
Change Order also binds all Owners. Failure of Owner to approve Contractors proposal for changes within three
(3) days after receipt shall constitute o rejection of the proposal. Contractor shall be reimbursed 0t $ 100 per hour,
with 0 minimum fifty dollars, for all expenses 0nd effort incurred in the production of any Change Order proposal
not accepted by Owner. Unless otherwise specified in agreed upon Change Orders, Owner shall pay for all agreed
upon Change Orders including the additional Contractor's compensation to Contractor in cosh or immediately
available funds within three(3) business days after Owner's acceptance of the proposal. Contractor will not be
obliged to proceed with any Work until all amounts hove been paid as agreed and Contractor hos no obligation to
stop Work while Change Orders ore being discussed.

REMEDY ROOFING, INC. - PAGE 6 OF 16
B.CHANGE ORDERS OF NECESSITY — Notwithstanding the provisions of Section 9A, Owner agrees to execute
Change Orders, including any necessary increases to the Total Contract Price, that moy be necessary to:

Comply with applicable governmental or regulatory requirements.
Provide structural integrity to the Improvements.
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Route electrical, mechanical, or other systems included in the Work.
Avoid or correct any conditions that might result in defects or other warranty claims.

5. CONTRACTOR’S RESPONSIBILITIES

Contractor, the performance of the Work, does so as cm independent contractor. Nothing contained in
in

or inferable this Contract should be construed to make Contractor the agent, servant, or employee of
from
Owner, or create (my partnership, joint venture, or other association between Owner 0nd Contractor. Contractor
accepts responsibility for the performance of oll duties reasonably necessary to complete the Work and
agrees that:

A. PERMITS — Contractor shall make reasonable efforts to obtain all necessary licenses, permits, and similar
authorizations required by any applicable governmental have no liability for any
authorities. Contractor shall
failure to obtain any such items, in which case either party may terminate this Contract without further liability
to the other party 0nd, in such event, Owner will receive a refund 0f the Initial Cash Payment.

B.PAYMENT 0F COSTS - Contractor shall pay oll costs related t0 the Work, except for costs associated with
Change Orders 0nd Allowance overoges as described above.

C. MATERIALS Contractor shall use all new materials in connection with the Work that ore of suitable quality
~

for the intended purpose, except as otherwise specified in the Construction Documents.

D. LIENS -
Contractor shall deliver the Improvements to the Owner free of all liens, claims, security interests or
encumbrances that mig ht have arisen from the performance 0f the Work, except the lien 0nd security interest
created by this Contract or given to the interim construction lender.

E. CODES AND STANDARDS — Contractor shall perform the Work in accordance with the Express Limited Home

Warranty (Paragraph 12), 0nd attached to the Contract as Addendum 14, except where such standards hove
been modified by local building codes. Contractor shall hove sole control over the scheduling 0nd progress
of the Work, including the superior right to select and arrange for all labor in any way related to the Work.
Contractor shall exercise exclusive control over the selection of subcontractors 0nd shall not be obligated to
employ subcontractors solely on the basis of cost savings thcnt might be achieved. All subcontractors sholl
perform their work independently, 0nd not cs 0n agent or employee, servant or representative of Contractor.

F. OTHER — Contractor shall perform oll other obligations as provided in this Contract

6. INSURANCE

Before beginning the Work, Contractor shall, upon c1 written request from the Owner, provide the Owner with a
copy of the Certificate of insurance.

7. WARRANTY
A. CONTRACTOR DOES NOT PROVIDE AN EXPRESS LIMITED WARRANTY THAT COVERS ITS WORK UNLESS THE EXPRESS
LIMITED WARRANTY IS INCLUDED IN WRITING ON THE NOTES SECTION ABOVE (PAGE 2). THE LENGTH OF TIME THE
WARRANTY COVERS lS ALSO DEFINED IN THE NOTES SECTION (PAGE 2).

REMEDY ROOFING. lNC. - PAGE 7 OF 16
IFTHE EXPRESS LIMITED WARRANTY WAS SELECTED, OCONTRACTOR AGREES TO COMPLY WITH THE EXPRESS LIMITED
HOME WARRANTY AS ITS EXPRESS CONTRACTUAL WARRANTY. CONTRACTOR AND OWNER AGREE THAT THE EXPRESS
LIMITED HOME WARRANTY CONSTITUTES THE EXCLUSIVE WARRANTY TO BE MADE AVAILABLE BY CONTRACTOR AND IS
IN PLACE, SUPERSEDES AND PRECLUDES OF ALL OTHER GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF’PERFORMANCE, WORKMANSHIP, REPAIR, MODIFICATION, MERCHANTABILITY,
SUITABILITY AND FITNESS. ANY AND ALL’IMPLIED WARRANTIES ARE HEREBY DISCLAIMED BY CONTRACTOR AND
WAIVED BY OWNER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF GOOD AND WORKMANLIKE REPAIR
OR MODIFICATION OR EXISTING TANGIBLE GOODS OR PROPERTY AND THE IMPLIED WARRANTY OF GOOD AND
WORKMANLIKE CONSTRUCTION. THE PARTIES AGREE THAT THE EXPRESS LIMITED HOME WARRANTY AND THIRD-PARTY
WARRANTY, IF APPLICABLE, ADEQUATELY SET FORTH THE MANNER, PERFORMANCE, AND QUALITY OF THE CONSTRUCTION
OF THE HOME AND IMPROVEMENTS AND SERVICES TO BE PERFORMED. Owner acknowledges, understands, 0nd
agrees that the terms of the Express Limited Home Warranty 0nd Third-Party Warranty, if applicable, ore clear,
specific, 0nd sufficiently detailed to establish the only standards of construction performance or service that
Contractor or Worrantor are obligated to meet.
The Parties agree that this Express Limited Home Warranty will control any warranty, workmanship, material, or
cmy other defect Claims regarding the Property or Improvements. In the event that the Express Limited Home
Warranty or the Third—Porty Warranty do not specify 0 building or performance standard for the identified
item, the usual 0nd customary industry standards for similar improvements in the geographic region shall
govern. In short, the Express Limited Home Warranty provides warranty coverage on the Improvements for
workmanship 0nd materials for the time period defined in the contract.
Under no circumstance is any landscaping, whether currently existing trees, plants, or gross on the subject
property, or ony of those installed by Contractor, warranted by the Express Limited Home Warranty or any other
warranty. Contractor 0nd Owner agree that no warranty of omy kind exists on landscaping in consideration for
issuance of the Express Limited Home Warranty 0nd any Third—Pcrty Warranty. It is incumbent upon the Owner
to properly maintain 0nd core for any landscaping.

B. IfThird-Porty Warranty is provided, Owner shall first file 0nd pursue ony Claim that moy be covered by
c1

the Third—Party Warranty with the third—party warranty company prior to making any warranty claim against
Contractor under the Express Limited Home Warranty.

C. Any Manufactured Product warranties will be assigned, without recourse, to Owner upon payment of the
assignment shall be evidenced by Contractor's execution 0nd delivery to Owner of the
Total Contract Price. This
"Assignment 0f Manufactured Product Warranties". Owner understands and agrees that proper maintenance
of the Improvements is required to ensure (i) the Express Limited Home Warranty 0nd Third—Porty Warranty, if

applicable remains in effect, 0nd (ii) the proper performance of the Improvements.

D. WARRANTY VOIDED -
The Express Limited Warranty is voided by repairs 0nd/or work performed on or
impacting Contractor’s Work, cmd/or the Owner refuses to allow the Contractor the opportunity to inspect 0nd
repair, if that is necessary.

8. OWNER'S RESPONSIBILITIES

Owner agrees to the following:
A.PAYMENTS - Owner shall make all payments to Contractor as required by this Contract.

B. TITLE AND POSSESSION - Owner shall protect the title and possession of the Property and pay all taxes and
assessments prior to delinquency.

C. APPROVALS — oll consents and approvals required from any governmental authority,
Owner shall obtain
architectural review committee,homeowners association or similar entity having the right to review 0nd
approve plans 0nd specifications for any residence or improvements proposed to be constructed on the
'

Property.

D. OBJECTIONS TO WORK - Owner agrees to promptly notify Contractor of any objections to any Work not in

REMEDY ROOFING, INC. - PAGE 8 OF 16
compliance with the Construction Documents. Failure by Ownerto promptlynotifyContractor of objections to
any Work performed within any phase of construction shall constitute an acceptance of that portion of the
Work subject to Contractor’s obligations under the Express Limited Home Warranty. Owner acknowledges
and agrees, however, that it may be inappropriate 0nd/or unreasonably expensive 0nd time—consuming to
replace, re—fabrioote, or repaint 0 component that exhibits a minor defective condition. In such instances,
Contractor, in its sole judgment, may (i) employ on alternate remedy to correct the deficiency in conformance
with reasonable building practices, or (ii) conclude that the condition is within acceptable tolerances 0nd
take no corrective action.

E. UTILITIES - Owner is solely responsible for providing Contractor, prior to commencement of construction,
with water, gas, storm and sanitary sewer, 0nd electricity 0t the lot line required for construction of the
Improvements.

F. EXISTING ITEMS~ Owner shall remove or protect oll of Owner's existing items of property 0t the Property

that could be affected by the contemplated construction. Contractor shall not be responsible for damaged
driveways, walks, lawns, trees, shrubs, flowers, 0nd items of personal property or the release of confined pets.
OWNER HEREBY RELEASES CONTRACTOR FROM ANY DAMAGES T0 THESE ITEMS THAT OCCUR ALL OR IN PART AS
A RESULT OF CONTRACTOR’S NEGLIGENCE, BUT NOT AS A RESULT OF ITS GROSS NEGLIGENCE.

G. SUBCONTRACTORS — Owner agrees notto instruct, direct, or otherwise communicate with the subcontractors
retained by Contractor os to the scheduling of or details about the Work (including additions t0 or deletions
from the Work). Furthermore, Owner shall not do or cause any work t0 be done, or alter or cause the alteration
of any portion of the Improvements, whether complete or incomplete, prior to Owner’s occupancy of the
Improvements without Contractor’s prior written consent.

H. OTHER — Owner shall perform all other obligations as provided in this Contract.

9. DEFAULT BY OWNER

A. EVENTS 0F DEFAULT BY OWNER (each is cm Owner Event of Default):

1. Owner or Owner’s agents or representatives foil to timely make ony payments due under this Contract,
including payment for any Change Orders.
2. Owner or Owner’s agents 0r representatives unreasonably delay or unreasonably interfere with the
Contractor in the execution of the Work.
8. Owner fails to participate in the Final Customer WoIk—Thru Approval and Punch List inspection.
4. Owner or Owner's agents or representatives foil to perform any material agreement contained in this
‘

Contract.
-

5. Owner, or ony person liable for the payment or performance under this Contract, files c1 petition in
bankruptcy, makes an assignment for the beneﬁt of any creditor, is adjudicated 03 bankrupt or insolvent,
or applies for or consents to the appointment of o receiver, trustee or liquidator of oll or o substantial
port of their or its assets.

B. NOTICE OF DEFAULT TO OWNER — Owner commits om Owner Event of Default, prior to exercising ony remedy
If

granted by this Contract or by law, Contractor may deliver notice of such default to Owner. If the Owner Event
of Default is not cured within fifteen (15) days ofter delivery of such notice ‘(Owner's Cure Period), Contractor
may exercise cmy remedy subject to the terms of this Contract.

c. REMEDIES OF CONTRACTOR — Upon the occurrence of any Owner Event of Default 0nd the expiration of
Owner’s Cure Period, oll amounts owed for Work completed will, 0t the option 0f the Contractor, become
immediately due and payable without prejudice t0 any other remedy of the Contractor 0nd Contractor may
(but shall not be obligated to) discontinue performance of this Contract 0nd (i) terminate this Contract 0nd
retain all money previously poid by Owner to Contractor as liquidated damages thereby releasing both
parties from this Contract; or (ii) terminate 0nd seek recovery of any 0nd oll damages suffered by Contractor,

REMEDY ROOFING, INC. - PAGE 9 OF 16
including, but not limited to,payment for a|| materials, labor, profit, overhead 0nd fees with respect to this
Contract. If Owner
refuses to accept the completed Improvements ond/or pay the Total Contract Price to
Contractor as specified in this Contract, Contractor not being in default, Contractor'will be entitled to pursue
all remedies provided by Texas low, save and except specific performance.

D. DELINQUENT PAYMENT —
Should the Owner foil to make payment to the Contractor of any portion of the Total
Contract Price when payment is due, then the Owner shall poy to the Contractor, in addition to the sum shown
Gs due, interest at the maximum rote allowed by applicable federal and state low, which interest shall accrue
as of the date payment was first due 0nd shall continue to accrue until the date of payment.

E.TERMINATION FOR CONVENIENCE -— Contractor hos the right to terminate this Contract for its convenience,
which shall be construed to mean for any reason whatsoever.

10. OWNER(s)' AND CONTRACTOR'S JOINT AGREEMENTS

A. MECHANIC’S LIEN - Owner grants to Contractor o mechanic’s lien to secure performance of the obligations
of Owner. If Owner is obtaining on interim construction loan, Contractor shall assign to the interim construction

lender o portion of Contractor’s mechanic’s lien equal to the amount of the interim construction loan
advanced to or for the benefit of the Owner 0nd paid to Contractor, 0nd to subordinate any remaining amount
of Contractor's lien to the interim construction loan. In the event that the Improvements to be erected foil
for any reason to be completed, or foil to be completed according t0 this Contract, or all of the labor 0nd
material used in erection thereof foil to be provided by Contractor, then Contractor 0nd the holder of the
indebtedness under the contractor’s and mechanic's lien shall hove 0 valid and subsisting lien for the Total
Contract Price, less such amount as would be reasonably necessary to complete the Improvements according
to the Construction Documents. In the event of any conflicts between this Contract 0nd the contractor’s 0nd
mechanic’s lien contract, the terms of this Contract shall control.

B. DOCUMENT RELIANCE —
Owner is advised that the Contractor may hove contracted with one or more
independent professional architects, engineers, surveyors, designers, or other professional third parties
(Contractor’s Professionals) to perform services 0nd/or prepare certain documents or reports for completion
of the Construction Documents ond/or use in constructing the Improvements. Owner, at Owner's option, may
also elect to obtain soil and sub—soil tests, flood plain mops 0nd any other data or documents that may impact
the performance of the completed Improvements from experts knowledgeable 0f such matters and hired by
Owner (Owner’s Professionals). Owner electsto obtain such data 0nd/ordocuments, Ownershall direct Owner’s
lf

Professionals to furnish oll such data and/or documents to Contractor prior to the design of the foundation
0nd the completion of the Construction Documents. In constructing the Improvements, Contractor will rely on
documents provided by Contractor’s Professionals 0nd Owner’s Professionals os being complete, adequate,
and correct in all respects. Contractor shall promptly notify Owner of any errors, conflicts, or inconsistencies
discovered with respect to the Owner supplied doto or Construction Documents. CONTRACTOR DOES NOT
WARRANT OR GUARANTEE AND WILL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN THE REPRESENTATIONS,
DOCUMENTS, DATA, PLANS, SPECIFICATIONS, DESIGNS, OR CONSTRUCTION DOCUMENTS THAT HAVE BEEN PREPARED
BY OWNER, OWNER’S PROFESSIONALS OR ANY OTHER THIRD PARTY. Contractor’s reasonable reliance on the doto
0nd Construction Documents compiled and/or provided by Owner‘s Professionals shall relieve Contractor from
all responsibility for or liability to the Owner for damages to the structural components of the Improvements

caused by raising, shifting, heaving or settling of the soil or ony other damage to the Improvements, provided
Contractor constructs the Improvements in substantial compliance with the Construction Documents. Any
supplements to the Construction Documents prepo red by Contractor shall be the property of Contractor and
shall not be used by Owner except for construction provided by Contractor. Owner acknowledges that Changes
moy occur in the Work and agrees that so long as the construction of the Improvements is substantially in
compliance with the Construction Documents, such deviations will be accepted.

c. WORK PERFORMED AND MATERIALS PROVIDED DIRECTLY BY OWNER - Upon receipt of Contractor’s written
approval, in the event Owner contracts with other parties to perform work or provide or install materials that
ore not c1 part of the Work performoble by Contractor hereunder, Owner shall keep such other parties from

REMEDY ROOFING, INC. - PAGE IO OF 16
interfering with the progress of the Work. To the extent reasonably practicable, Contractor shall cooperate
with such other parties, but will not be responsible for coordinating that work or for the quality of their work.
Owner agrees that any ACTS OF, OMMISSlONS BY, OR LOSSES, DAMAGES OR DELAYS CAUSED BY OWNER, OWNER’S
AGENTS OR ANY THIRD PARTY RETAINED BY OWNER SHALL BE THE RESPONSIBILITY OF OWNER, NOT THE CONTRACTOR.
FURTHERMORE, OWNER AGREES THAT CONTRACTOR WILL NOT BE REQUIRED TO PAY FOR, WARRANT, REPAIR, INSURE,
OR CORRECT ANY WORK PERFORMED OR MATERIALS PROVIDED BY PERSONS OR ENTITIES EMPLOYED BY, OR WHO
HAVE CONTRACTED WITH OWNER. Owner shall fully 0nd promptly pay oll sums charged by third parties hired by
Owner 0nd indemnify 0nd hold Contractor harmless from oll such charges 0nd ony related liens.
i

D. CONFIDENTIALITY OF INFORMATION — Owner acknowledges that Owner moy receive a list of subcontractors
0nd materialmen utilized by Contractor to construct the Improvements. Owner acknowledges that Contractor
regards thot information as confidential, proprietary, 0nd trade secret information of Contractor’s business.
Owner agrees that Owner shall not disclose such information to any party except os required by this Contract.
Prior to Substantial Completion 0nd payment to Contractor of the Total Contract Price, Owner agrees that
Owner will not contract any of Contractor's subcontractors for labor or materials to be incorporated into the

Improvements except with the express, prior written consent of Contractor. Owner further acknowledges that
Contractor shall hove the right to seek injunctive relief and damages should Owner violate this paragraph.
Owner agrees that o temporary restraining order and injunction may be granted by a court with jurisdiction
to prevent violation of this paragraph by Owner.

E. OTHER PARTIES BOUND -Owner 0nd Contractor eoch bind themselves, their respective heirs, executors,
administrators, partners, successors, assigns, 0nd legal representatives in all matters related to this Contract.

F. N0 ASSIGNMENT — Neither party hos the right to assign this Contract without the written consent of the other,
which consent shall not be unreasonably withheld.

G. PERMISSION FOR INTERNET/SOCIAL MEDIA PUBLICATION — Owner grants Contractor permission to take
pictures 0nd video of the Property and Improvements for the purpose of promoting Contractor’s work on its
website, the internet, social media, contests, or literature. Owner hereby waives any Claim for compensation
of any kind related to this permission 0nd publication, 0nd Owner further waives any related Claims, including,
but not limited to, a violation of Owners privacy or any other personal or property rights.

H.RELEASE OF AND INDEMNIFICATION FOR LOSSES SUSTAINED DURING CONSTRUCTION -— Because of potential
safety 0nd health hazards present during construction of the Improvements, Gs well os the practical limitations
on the Contractor's ability to control the activities of all persons involved in the construction process and
thereby limit the risk of personal injury that may arise from construction activities, the parties agree cs follows:

1. Personal Safety: To ensure 0nd to protect the personal health and safety of Owner 0nd Owner's licensees
0nd invitees, Owner shall restrict entry by the Owner 0nd Owner’s licensees and invitees onto the Property
or into the Improvements to c1 minimum. When Owner chooses to enter the Property (except 0t the
request of Contractor), 0nd irrespective of Contractor’s presence on the Property 0t such time, OWNER
AGREES TO AND DOES HEREBY RELEASE, INDEMNIFY AND HOLD CONTRACTOR HARMLESS FROM AND AGAINST
ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION ARISING IN FAVOR OF OWNER OR OWNER’S AGENTS,
LICENSEES AND INVITEES ON ACCOUNT OF BODILY INJURY, DEATH OR DAMAGE TO OR LOSS OF PROPERTY
IN ANY WAY OCCURRING OR INCIDENT TO THE CONDITION OF THE PROPERTY AND/OR THE IMPROVEMENTS.
THIS RELEASE AND INDEMNITY IS GIVEN TO CONTRACTOR REGARDLESS OF WHETHER THE CONTRACTOR OR
ITS AGENTS OR EMPLOYEES ARE NEGLIGENT IN WHOLE OR IN PART AND EVEN WHEN THE INJURY, DEATH OR
DAMAGE TO OWNER OR OWNER’S AGENTS, LICENSEES AND INVITEES IS CAUSED BY THE SOLE NEGLIGENCE OF
CONTRACTOR OR ATTRIBUTABLE TO CONTRACTOR'S NEGLIGENCE PER SE OR IMPOSED BY STRICT LIABILITY.
2. Risks to Vegetation: Owner also acknowledges that the contemplated construction imposes on inherent
risk to the health of the trees 0nd vegetation situated on the Property, 0nd Owner understands that
Contractor cannot guarantee the viability of those trees 0nd vegetation. Owner acknowledges this risk
0nd agrees to release the Contractor from cmy claims for damages to or loss of trees or vegetation
from construction activities.
resulting
l. TERMINATION/STIPULATED DAMAGES PRIOR TO SUBSTANTIAL COMPLETION — In the event a bona fide dispute
- PAGEHOFIB
REMEDY ROOFING.INC.
or material misunderstanding (Dispute) arises between Contractor 0nd Owner prior to Substantial Completion
0nd if such Dispute cannot be resolved to the mutual satisfaction of Contractor 0nd Owner, Contractor 0t its
sole election, may either submit the Dispute to mediation as provided in this Contract or may terminate this
Contract by written notice to Owner. In the event of termination of this Contract by the Contractor pursuant to
this paragraph, Contractor shall elect to pay Owner one of the following, cs stipulated damages: (1) 5% of the
Initial Cosh Payment as defined above in I.A., or (2) $ 500.00. The parties agree that the stipulated damages

are 0 reasonable and foreseeable estimate of the damages thcut might be experienced by the Owner incident
to the cancellation of this Contract (it being difficult if not impossible to ascertain those damages) provided
that Owner shall be obligated to pay or reimburse Contractor for oil materials purchased, oll Work performed
up through the date of termination 0nd on amount representing Contractor’s profit or fee that shall be
proportionate to the amount of Work performed. Upon such termination of this Contract by Contractor and
tender of the stipulated liquidated damages, no cause of action against Contractor shall accrue to the Owner
and Owner shall execute c: written release of this Contract and deliver it to the Contractor.

J.ARBITRATION — All disputes and claims between Owner and Contractor concerning this Contract which
eitherparty believes cannot be resolved informallyorfirstthrough mandatory mediation,which isacondition
precedent to the ability of either party to assert a formal claim, including without limitation any warranty
claims, shall be resolved by binding arbitration conducted by a single arbitrator under the auspices, rules
and procedures of theAmerican Arbitration Association. No discovery shall be allowed except as may be
agreed to in writing by the parties. Either party may demand arbitration, or the arbitrator’s final award
shall be issued within ninety (90) days after service of the arbitration demand on the other party. Any
party who challenges this provision with a Court and loses, shall pay the opposing party's reasonable and
necessary attorney's fees and costs incurred in defending the provision. Judgment upon the arbitration
award or decision may be confirmed, entered, and enforced in any court having jurisdiction, subject to
appeal only in the event of the arbitrator’s misapplication of the law, no evidence to support the award, or
such other grounds for appeal of arbitration awa rds that exist by applicable law. This arbitration provision
shall survive termination of this Agreement. Nothing herein shall excuse Owner from participating in and
complying with any applicable provision of the Texas Property Code. Unless otherwise prohibited by law,
mediation and arbitration shall be commenced and administered in Houston, Texas. Any arbitrator must
have five (5) years of experience serving as an arbitrator or mediator and shall have technical expertise
and knowledge appropriate to the dispute.

K. WAIVER 0F TRIAL BY JURY: The parties agree that any disputes between them shall be resolved by a court
of competentjurisdiction in the county where the Property is located without the use of a jury. The right to a
trial byjury is hereby expressly waived by Owner and Contractor. The Parties also agree that the rights and
obligations set forth in this paragraph shall survive termination of this Contract by either party, default of
this Contract by either party, or Substantial Completion and full payment of the Total Contract Price. Any
party who challenges this provision with a Court and loses, shall pay the opposing party's reasonable and
necessary attorney’s fees and costs incurred in defending the provision.

L. MUTUAL LIMITATION OF CLAIMS AND REMEDIES — The parties desire pragmatic 0nd logical limitations on
claims cmd remedies to ensure effective 0nd realistic dispute resolution. Accordingly,
l. Limitation of Claims: Under no circumstances shall either Owner or Contractor be liable for any
special, indirect, or consequential damages, including claims of mental anguish, except as otherwise
specifically set forth in this Contract. No pa rty shall be liable for treble damages, exemplarydamages,
or punitive damages. Any action or claim, regardless of form, that arises from or relates to this
Contract, the Work and/or the Improvements is barred unless it is brought by Owner or Contractor
not later than two (2) years and one (1) day from the date the cause of action accrues. Moreover,
Contractor is not responsible for any damage arising out of personal property or other items falling
off walls clue to Remedy’s work including, but not limited to, hammering and nail pops on the ceiling.
2. Waiver of Subrogotion: The parties agree that after Substantial Completion, Owner shall secure and
maintain insurance covering risk of loss 0nd damage to the Improvements. The parties further mutually
agree that with respect to any loss or damage thot may occur to the Property, Improvements, personal
property, persons, third—porties, or any other loss by reason of fire, the elements, or any other cause
thot could be or is insured against under the terms of standard fire 0nd extended coverage insurance

REMEDY ROOFING, INC. - PAGE 12 OF 16
policies, or any other insurance, regardlessof the cause or origin, including negligence of the Parties,
their agents, officers, or employees, the party carrying such insurance 0nd suffering said loss, hereby
releases the other from any 0nd all claims with respect to such loss. The parties further mutually agree
that their respective insurance companies shall hove no right of subrogation against the other party or
other party’s insurance carrier on account of any such loss as all rights of subrogation ore hereby waived
0nd discloimed. Each party agrees thot it will request its insurance corrier(s) to include in its policies such
a clause or endorsement, but the failure to request or include such does not affect the applicability or
effectiveness of this paragraph. The agreements in this paragraph shall survive Substantial Completion
0nd payment in full of the Total Contract Price. Nothing contained in this paragraph shall be deemed to

modify or otherwise affect releases of either party from liability for Claims elsewhere herein contained.
3. DAMAGES CAPPED. Notwithstanding anything to the contrary, Owner may not recover damages
against Contractor an amount that exceeds $100,000 or 5% of the paid contract price, whichever
is greater. For purposes of this limitation of liability provision, damages include actual damages,

reasonable and necessary attorney’s fees, court costs, etc.

M. WARRANTY REQUEST- Owner 0nd Contractor agree that c1 request for warranty performance shall not be
construed Gs c1 notice of construction defect under the Texas Residential Construction Liability Act (RCLA), and
that any notice under RCLA sholl be separately sent to Contractor in the manner required by RCLA.

N. ATTORNEY FEES The prevailing party in any legal proceedings brought in relation to this Contract shall be
-

entitled to recover from the non-prevailing party all litigation costs, expert fees, 0nd reasonable 0nd necessary
attorney’s fees. For purposes of this provision litigation costs also includes post—judgment attorney’s fees 0nd
costs. Interest on oll unpaid balances will accrue 0t 1.5% per month 0nd Owner will be responsible for thot
interest.

O. COLLECTION FEES —

Case Info

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Luis M. Singleterry Track Judge’s New Case

Case No.

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Document Filed Date

May 26, 2023

Case Filing Date

March 23, 2022

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Party Discovery: Remedy Roofing, Inc. VS. Javier Perez

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