FILED
`3/15/2023 11:31 AM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Shunta Jackson DEPUTY
`
`DC-23-03455
`
`Cause No.
`
`David Bower
`
`District Court
`
`Plaintiff,
`
`V.
`
`Dallas County, Texas
`
`Robert McNair d/b/a In & Out General
`Contracting Services LLC
`
`19st
`
`Defendant.
`
`Judicial District
`
`PLAINTIFF’S ORIGINAL PETITION
`
`
`Plaintiff David Bower (“Bower”’ or “Plaintiff’) files this Original Petition against
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`Defendant Robert McNair d/b/a In & Out General Contracting Services LLC (“Defendant’’)
`
`and, in support, states the following:
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`I.
`
`INTRODUCTION
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`This is a breach of contract and construction defect case in which Defendant
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`represented to Bower that Defendant was capable of performing the remodel of Bower’s home
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`in a workmanship like manner but utterly failed to deliver and uphold its contractual
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`obligations.
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`1.
`
`2.
`
`Il.
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`JURISDICTION & VENUE
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`The damages Bowerseeksare within the jurisdictional limits of this Court.
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`Defendant Robert McNair is an individual residing in Keller County, Texas.
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`McNair maybeservedat his residence, 3032 Rolling Wood Ln,Keller, TX 76248 or wherever
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`he may be found. Robert McNair was doing business as In & Out General Contract Services
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`LLC as In & Out General Contracting Services LLC was a domestic limited liability company
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`David Bower’s Original Petition
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`1
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`

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`registered to do business in the State of Texas until the Secretary of State forfeited its charter,
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`certification or registration on February 20, 2015.
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`3.
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`Venueis proper in this Court because Dallas, County is the county in whichall
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`or a substantial part of the events or omissions giving rise to the claim occurred. TEX. Clv.
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`PRAC. & REM. CODE ANN. § 15.00(a)(1). Moreover, a part of the real property that Defendant
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`damagedis located in Dallas County. See TEX. CIv. PRAC. & REM. CODE ANN. § 15.011.
`
`TH.
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`RULE 47 DISCLOSURE
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`4,
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`Pursuant to Texas Rule of Civil Procedure 47, Bower seeks monetary relief of
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`over $250,000 but no more than $1,000,000.00. See Tex. R. Civ. P. 47(c)(3).
`
`IV.
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`DISCOVERY LEVEL
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`5.
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`Bowerelects that discovery be conducted pursuant to Texas Rule of Civil
`
`Procedure 190.3 governing level 2 discovery plans.
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`V.
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`STATEMENTOF FACTS
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`6.
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`On July 22, 2020, Defendant, as In & Out,' entered into an agreement with
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`Bowerto remodel Bower’s residential property located at 752 Cardinal Lane Coppell, Texas
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`75019 (the “Property”).? The Agreement provided Bower would pay Defendant on a “cost-
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`plus” basis. Meaning, Bower would pay Defendanta fee of 25% of the total costs of the project
`
`as defined by the Agreement.’ Bower agreed to pay such an inflated price based on
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`1 On February 20, 2015, the Secretary of State forfeited the charter, certificate or registration of In & Out
`General Contracting Services LLC (“in & Out’). Despite this, Robert McNair (‘McNair’) continued to operate
`In & Out in Texas. As a result, McNair is personally liable for the debts created or incurred after February 20,
`2015. See Texas Tax Code § 171.255.
`? A true and correct copy of the Construction Agreementfor Residential Home Renovation (the “Agreement”)
`is attached hereto as Exhibit A.
`3 Ex. A at pp. 2-3.
`
`David Bower’s Original Petition
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`2
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`

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`representations by Defendant of the timeliness and quality of the work Defendant would
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`perform. Specifically, the Agreementstates:*
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`i. All work shall be completed ina workmanship like manner and is the responsibility of
`Contractor to ensure compliance with all building codes, required permits. and other
`
`applicable laws,
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`Further, the Agreement provided that, should Defendant engage subcontractors to perform
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`the work, Defendant shall “in all instances remain responsible for the proper completion of
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`this Contract.” These subcontractors were to be duly licensed as necessary and Defendant
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`agreed to “make best efforts to source materials, suppliers, and skilled laborers to meet
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`[Bower’s] specifications.”®
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`7.
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`Despite express contractual provisions to the contrary, the construction work
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`performed was not completed in a workmanship like manner. The project was riddled with
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`defects and deficiencies. The full extent of damage caused by Defendant is unknown, but
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`Boweris currently aware of the following:
`
`e
`
`e
`
`e
`
`e
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`Improperinstallation of patio beam footing;
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`Improper framing of skylight;
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`Improper framing of various doors and windows throughout the Property;
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`Incorrect ordering and improperinstallation of kitchen slab;
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`e Defective installation of granite backsplash;
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`e
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`Improper HVAC connection and installation;
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`e Furnace incompatible with selected foam insulation;
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`4 Td. at p. 1.
`> Id.
`® Id. at p. 2
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`David Bower’s Original Petition
`
`3
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`

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`e
`
`e
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`Interior doors were ordered without Bower’s approval;
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`Installation of pine ceiling (rather than cedar as approved by Bower) without
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`disclosure to Bower and improperinstallation of same;
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`e Toilet installed at incorrect location;
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`e
`
`e
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`Installation of damaged plumbingvalve cartridges;
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`Installation of incorrect guest bathroom tub spout;
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`e Failure to conduct effective underground plumbingtest in creating plumbing
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`design, ultimately resulting in no guest bathroom walk-in shower;
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`e Faulty installation of the “p” trap in the half bathroom;
`
`e
`
`e
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`Improperly installed shut off valve of half bathroom’s sink;
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`Improperinstallation of gas line connections, requiring removal and
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`replacementof newly installed brick;
`
`e
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`Improperinstallation of showertile floor, resulting in poor drainage and
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`sloping among otherissues;
`
`e Noorineffective waste managementsolution for duration of project;
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`e
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`Improperinstallation of lighting, including cannedlights and a pendantlight;
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`e Electrical/wiring work did not include commercial grade components, as
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`repeatedly requested by Bower;
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`e
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`Ineffective grinding of the flooring, which required handscraping and
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`significant cleaning at increased cost to Bower;
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`e Failure to procure correct sliding glass door;
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`e
`
`e
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`Improperinstallation of ceiling fan; and
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`Items improperly ordered were never used, such as interior pocket doors.
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`David Bower’s Original Petition
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`

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`8.
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`To make matters worse,
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`the project was plagued by dozens of failed city
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`inspectionsthat significantly delayed the project, including, but not limited to, inspections of
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`plumbing, framing, electrical, and the final building. None of the subcontractors who
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`completed work subject to inspection ever attended a single inspection of their work. Further,
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`unbeknownst to Bowerat the time, various subcontractors required to be licensed to perform
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`their work were notactually licensed.
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`9.
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`After failed attempts to reconcile the deficiencies and damage caused by
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`Defendant, Bower sent a demandletter to Defendant on August 9, 2022 providing notice of
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`his claims, including notice pursuant to the Texas Deceptive Trade Practices—Consumer
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`Protection Act (“DTPA”) and the Residential Construction Liability Act (“RCZA”). On
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`September 2, 2022, Defendant sent a response and on October 21, 2022, Bowersent a reply.
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`10.
`
` Insum, Bower paid approximately $116,828.00 for a completely mismanaged
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`and inadequate remodel of his home. Bower brings suit to recover these damagesandhis
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`attorneys’ fees incurred in connection with doing so.
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`VI.
`
`CAUSES OF ACTION
`
`Breach of Contract
`
`11.
`
`Pursuant to TEX.R. Clv. P. 58, Plaintiff realleges and incorporates by reference
`
`all the foregoing facts and allegationsasif fully set forth herein.
`
`12.
`
`A valid and enforceable contract exists between Defendant and Bower.
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`13.
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`That contract clearly and unequivocally required all work to be performed in a
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`“workmanship like manner,” for Defendant to ensure compliance with all building codes,
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`required permits, and other applicable laws, and for Defendant to use individuals duly
`
`David Bower’s Original Petition
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`5
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`

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`licensed as required by law. Further, the Agreement held Defendant responsible for all work
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`performed by any subcontractor under the Agreement.
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`14.
`
`Bower performed underthe contract by paying $116,828.00 for Defendant and
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`Defendant’s subcontractors and/or vendors’ inadequate work.
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`15.
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`Defendant breached the Agreementby:
`
`a.
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`failing to complete the work or ensure the work was completed in a
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`workmanshiplike manner;
`
`b.
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`failing to ensure work that is required to be done by licensed individuals was
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`done by duly licensed individuals; and
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`c.
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`failing to ensure the work performed complied with required permits, building
`
`codes, and other applicable laws as shown by the numerous failed city
`
`inspections.
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`16.
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`Based on these facts, Defendant did not provide the services it was specifically
`
`retained by Bower and paid to provide. These failures by Defendant have caused and will
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`continue to cause Bower damages. Specifically, Defendant’s acts and omissions directly and
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`proximately caused damage to Bower; namely, $116,828.00 paid by Bower to Defendant,
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`Defendant’s subcontractors and/or vendors, and others to remedy the deficient work and
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`damage caused by Defendant. Further, additional damagesare likely to be incurred as Bower
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`continues to repair the Property and discovers presently unknown defects caused by
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`Defendant and its subcontractors.
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`David Bower’s Original Petition
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`6
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`

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`Breach of Express Warranty
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`17.
`
`Pursuant to Tex. R. Civ. P. 58, Plaintiff realleges and incorporates by reference
`
`all the foregoing facts and allegationsasif fully set forth herein.
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`18.
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`Defendant sold remodeling services to Bower for the remodel of the Property
`
`as described above.
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`19.
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`Defendant made express representations (both orally and in writing) to Bower
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`regarding the quality of tts remodeling services. Specifically, Defendant made representations
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`as to the quality and fitness of Defendant’s ability to complete the project, including that the
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`services would be completed tn a workmanlike mannerand that only licensed subcontractors
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`would be retained to work on the project.
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`20.
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`The construction services rendered by Defendant did not comply with its
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`representations and breached Defendant’s express warranties. The Property was plagued with
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`failed inspections and deficiencies resulting in damage to Bower. Further, Bower has now
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`learned subcontractors used by Defendant were not appropriately licensed. Most troubling,
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`in at least one instance, upon information and belief, the subcontractor hired by Defendant
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`(an electrician) provided a license numberofa third-party subcontractor, paid that third-party
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`subcontractora fee (1.e. an unlawful kickback) to use the license numberof anotheras its own,
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`and falsely represented to Bowerhe waslicensed. The fact that Defendanthired an unlicensed
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`electrician to work on Bower’s project breached Defendant’s warranties.
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`21.|Defendant’s breach of warranties directly and proximately damaged Bower.
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`Violation of the Deceptive Trade Practices Act (“DTPA”)
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`22.
`
`Pursuant to TEX.R. CIv. P. 58, Plaintiff realleges and incorporates by reference
`
`all the foregoing facts and allegationsasif fully set forth herein.
`
`David Bower’s Original Petition
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`7
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`

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`23.
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`The Plaintiff is a consumer as contemplated by Texas Business and Commerce
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`Code Ann. § 17.45 who purchasedservices from Defendant.
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`24.
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`Defendant can be sued under the DTPAbecauseit contracted to provide work,
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`labor, and/or service to Bower in connection with the sale or repair of real property.
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`25.
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`Defendant violated the DTPA in the following ways:
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`a. Engaged in false, misleading, or deceptive acts or practices that violate the
`DTPA’s “laundry list” in the following ways:
`
`(1)
`
`(2)
`
`(3)
`
`(4)
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`causing confusion or misunderstanding as to the source,
`sponsorship, approval, or certification of goods or services.
`Defendant
`represented the
`subcontractors
`it
`employed
`possessed certain skills and were properly licensed when they
`were not, and Defendant represented it could and would
`provide services in a workmanship like mannerwhenit did not;
`
`representing that goodsor services have sponsorship, approval,
`characteristics, ingredients, uses, benefits, or quantities which
`they do not have orthat a person has a sponsorship, approval,
`status, affiliation or connection which the person does not.
`Defendant
`represented the
`subcontractors
`it
`employed
`possessed certain skills and were properly licensed when they
`were not, and Defendant represented it could and would
`provide services in a workmanship like mannerwhenit did not;
`
`representing that goodsorservices are of a particular standard,
`quality, or grade, or that goods are of a particular style or
`model, if they are of another. Defendant represented it was
`qualified and able to complete the job in a workmanship like
`and timely manner(it was not) and would utilize skilled and
`properly licensed subcontractors (it did not); and
`
`failing to disclose information concerning services which was
`knownat the time of the transaction if such failure to disclose
`such information was intended to induce the consumerinto a
`transaction into which the consumer would not have entered
`had the information been disclosed. Defendant did not tell
`Bowerofits inability to complete the job in a workmanshiplike
`and timely manner and that the subcontractors it used were not
`properly skilled or licensed;
`
`b. Breached an express warranty as described above; and
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`David Bower’s Original Petition
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`

`

`c. Committed an unconscionable act by falsely representing the construction
`would be completed in a workmanship like manner, would utilize duly
`licensed individuals as needed, and that Defendant would use“best efforts” to
`use skilled individuals; when, in reality, Defendant ignored industry standards
`and retained unlicensed individuals.
`
`26.
`
`Bowerrelied on Defendant’s false representations and omissions that were
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`intended by Defendant to induce Bowerto transact with Defendant.
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`27.|Defendant’s actions are a producing cause of Bower’s damagesto date and the
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`damages Bowerwill incur tn the future.
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`Fraud
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`28.
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`Pursuant to Tex. R. Civ. P. 58, Plaintiff realleges and incorporates by reference
`
`all the foregoing facts and allegationsasif fully set forth herein.
`
`29.
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`Defendant made material misrepresentations to Bower as described above.
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`Specifically, Defendant represented, among other things, that it was capable and would
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`complete the remodel of the Property in a workmanship like mannerby retaining skilled and
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`licensed subcontractors.
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`30.
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`At the time that Defendant made these misrepresentations, Defendant knew
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`they were false, or in the alternative, made them recklessly, as a positive assertion offact.
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`31.|Defendant made these representations with the intent that Bower would rely
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`on them and hire Defendantfor the remodel of the Property.
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`32. Without knowledgeofthe truth thereof, Bowerrelied on the representations to
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`his detriment and suffered damages and will continue to suffer damagesasa result.
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`David Bower’s Original Petition
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`9
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`

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`VII.
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`CONDITIONS PRECEDENT
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`33.
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`Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions
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`precedent to Bower’s recovery against the Defendant have been performed, have occurred, or
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`have been waived.
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`VIII. REQUEST FOR JURY TRIAL
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`34.
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`Plaintiff hereby demandsa jury onall issues and hereby tenders the appropriate
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`jury fee.
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`IX.
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`ATTORNEYS?’ FEES
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`35.
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`Plaintiff seeks to recover attorneys’ fees against Defendant pursuant to Texas
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`Civil Practice and Remedies Code Section 38.001(a) in this suit for breach of the Agreement.
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`X.
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`PRAYER
`
`Plaintiff respectfully requests the followingrelief:
`
`(1)
`
`(i1)
`
`Judgmententered in favor of Plaintiff to recover his actual damages;
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`Prejudgment and post-judgmentinterest;
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`(iit)|Reasonable and necessary attorneys’ fees as allowed by law;
`
`(iv)
`
`(v)
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`All costs of court; and
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`Such other and further relief, both at law and in equity, that justice
`requires.
`
`David Bower’s Original Petition
`
`10
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`

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`Dated: March 14, 2023
`
`Respectfully submitted,
`
`CRAWFORD, WISHNEW & LANG PLLC
`
`By: _/s/ Trey Crawford
`Trey Crawford
`State Bar No. 24059623
`tcrawford@cwl.law
`Haleigh Jones
`State Bar No. 24097899
`hjones@cwl. law
`Makenzie Craft
`State Bar No. 24110753
`meraft@cwl.law
`1700 Pacific Ave., Suite 2390
`Dallas, Texas 75201
`Telephone No. (214) 817-4500
`Facsimile No. (214) 817-4509
`Counselfor PlaintiffDavid Bower
`
`David Bower’s Original Petition
`
`

`

`EXHIBIT 1
`
`Construction Agreement for Residential Home Renovation
`(Cost-Plus Agreement)
`
`THIS INDEPENDENT CONTRACTOR AGREEMENT(the
`" Agreement") dated this 22nd day of July, 2020
`
`BETWEEN:
`
`David and Callye Bower 752 Cardinal Lane Coppell, Tx 75019
`(the "Owner")
`
`-AND -
`
`In & Out General Contracting Services LLC 3032 Rolling Wood Lane
`Keller, TX 76248
`(the "Contractor").
`
`BACKGROUND:
`
`A. The Owneris of the opinion that the Contractor has the necessary qualifications,
`experience, and abilities to provide services to the Owner.
`
`B. The Contractor is agreeable to providing such services to the Owner on the terms and
`conditions set out in this Agreement.
`
`IN CONSIDERATIONOFthe matters described above and of the mutual benefits
`and obligations set forth in this Agreement, the receipt and sufficiency of which
`consideration is hereby acknowledged, the Owner and the Contractor(individually the
`"Party" and collectively the "Parties" to this Agreement) agree as follows:
`
`GENERAL PROVISIONS
`
`1. All work shall be completed in a workmanship like manner andis the responsibility of
`Contractor to ensure compliance with all building codes, required permits. and other
`applicable laws.
`
`2. To the extent required by lawall work shall be performed by individuals duly licensed
`and authorized by lawto perform said work.
`
`

`

`Construction Agreement
`
`3. Contractor may at its discretion engage subcontractors to perform work hereunder.
`provided Contractor shall fully pay said subcontractor andin all instances remain
`responsible for the proper completion ofthis Contract.
`
`4. Contractor shall furnish Owner appropriate releases or waivers oflien for all work
`performed or materials provided at the time the next periodic payment shall be due.
`
`5. All change orders shall be in writing and signed by both Owner and Contractor.
`
`6. Contractor warrants it is adequately insured for injury to its employees andothers
`incurring loss or injury as a result ofthe acts of Contractor and subcontractors.
`
`7. Contractor shall obtain all permits necessary for the work to be performed.
`
`8. Contractor agrees to removeall debris and leave the premises in broom clean
`condition.
`
`9. In the event Ownershall fail to pay anyperiodic or installment payment due
`hereunder. Contractor may cease work without breach pending paymentor resolution of
`any dispute.
`
`10. Contractorshall not be liable for any delay due to circumstances beyondits control
`including strikes, casualty or general unavailability of materials. Unavailability of
`materials does not include materials not ordered on time orverified to be delivered on
`time.
`
`11. Contractor warrants all work for a period of 12 months following completion.
`
`12. Contractor agrees to make best efforts to source materials. suppliers. and skilled
`laborers to meet Owner's specifications.
`
`Services Provided
`The Contractorshall furnish the materials and performall of the work agreed to on the
`Architect drawings (Exhibit A attached hereto) and/or described in the specifications, a
`quote or estimate document for a specific work project, or Scope of Work (SOW) asit
`pertains to work to be performed on property located at 752 Cardinal Lane Coppell TX
`75019.
`
`Term of Agreement.
`The term of this Agreement(the "Term") will begin on the date of this Agreement and
`will remain in full force and effect until the completion of the Services, subject to earlier
`termination as provided in this Agreement.
`
`In the event that either Party breaches a material provision under this Agreement, the
`non-defaulting Party may terminate this Agreement and require the defaulting Party to
`indemnify the non-defaulting Party against all reasonable damages.
`Cost-Plus Basis.
`
`Ownerwill pay Contractor on a “cost-plus” basis. “Costs” will be determined by the
`actual Cost of work on the Project approved by Owner, which will include, without
`limitation, the following items:
`
`

`

`Construction Agreement
`
`A. Materials, Tools & Equipment. The expenseofall materials and supplies (not paid
`directly by owner), temporary facilities, equipment, and tools not customarily owned by
`Contractor in the performanceofa residential home renovation (such as dumptrucks,
`grading equipment, or heavy construction equipment).
`
`B. Labor.
`
`C. Subcontracts. All payments by Contractor to subcontractors associated on the Project.
`D. Demolition. All expenses of demolition, debris removal, debris disposal, and site
`cleanup not paid directly by owner.
`
`E. Extraordinary Expenses. All extraordinary expenses of Contractor incurred and
`attributable to the Project, including without limitation losses or expense incurred without
`the fault or negligence of Contractor and expenses associated with taking emergency
`action to prevent damage,injury, or loss.
`
`F. Added Benefits. Any other expenses, fees, or services incurred by Contractorin
`performanceof the work on the Project that benefit Owneror were providedat the
`request or direction of Owner.
`
`G. Miscellaneous. All other expenses and fees associated with the Project not paid
`directly by Owner.
`
`In addition to the Cost of work, Contractor will be compensated for overhead and a fee
`based on a percentage of the Cost of work at the followingrate:
`
`Contractor Overhead and Fee(cost plus): 25%of total costs, excepting any 3" party
`sub-contactor work, materials, or services sourced and managed by Owner.
`
`Cost Estimate.
`Excepting specific sub-contractor quoted and estimates, the Contractor’s estimate of
`Project Costs is based on Contractor’s experience, the Plans, and Owner’s explanation of
`the Project. The estimates are not a fixed fee and will not be used to determine thefinal
`consideration owed to Contractor for the Cost of work performed, overhead,orfee.
`
`Performance
`The Parties agree to do everything necessary to ensure that the terms of this Agreement
`take effect. Contractor agrees to provide updates, construction documents, otherproject
`files such as photos, drawings, quotes and invoices by replying to Ownersupplied project
`tracker emails (www.teims.net).
`
`Time of Performance.
`A. Commencement. Contractor will commence work within 2 days after this Agreement
`has been signed,all required permits and approvals have been issued, and Contractor has
`received the deposit.
`B. Completion. Contractor will diligently pursue and substantially complete all work
`within a reasonable time. Contractorestimates substantially completion (“Substantial
`Completion”) to be approximately 2-3 months from commencement.The Project will be
`considered substantially complete upon any ofthe following: (a) issuance ofa
`
`

`

`Construction Agreement
`
`governmentcertificate of occupancy,final or temporary; (b) notice from Contractorthat
`the work has been completedif a certificate of occupancy is not required; or (c) the
`Project is useable for the intended purpose. The estimated date for Substantial
`Completion will be extended for any reason specified in this Agreementand for causes
`beyond Contractor’s control, including without limitation, inclement weather, differing
`site conditions, labor disputes, natural disasters, acts of God, unavailability of materials,
`stoppage required to comply with governmental order or regulation, and interference by
`Owner. Contractor will not be liable for any damagerelating to these extensions.
`
`Changes to the Project or Price
`Owner may not make changesto the Project without Contractor’s agreement. Owner
`must timely request any desired change to permit scheduling and completion with
`minimuminterruption and Cost increase. The Cost to complete the Project may increase
`or decrease due to: (a) changes to the Project agreed to by the Parties; (b) changes in
`codes after commencement; and (c) latent defects in the existing structure (such as soil
`conditions that may require extraordinary work, inadequate structural support, or
`termite/woodrot or other damage to the existing structure) that could not reasonably have
`been observed by Contractor before the work.If a latent structural defect is discovered,
`Contractor will give Owner notice and may prepare an estimate of the anticipated
`increase in Cost to complete the Project. Expenses incurred by Contractor in preparing
`the estimate (such as engineering fees) will be paid by Owner whenbilled by Contractor
`unless otherwise agreed in writing. A change to the Project or Cost will be agreed to by
`the Parties and may be memorialized in a written Change Order. For any change
`requested by Owneror of the type described above, whether a Change Orderis executed,
`Ownerwill reimburse Contractor for all labor and material expenses and reasonable
`profit and overhead.
`
`Insurance Requirements
`Contractor must maintain General Liability Insurance required by law for damagesto
`persons or property who enter the Project at Contractor’s expense. Owneris responsible
`for all other insurable risks, including without limitation, property, casualty, and theft
`insurance in an amount necessary to cover the Project. Ownerbearsthe risk ofloss forall
`materials incorporated into Project or stored onthe jobsite.
`
`Special Conditions Covid 19
`Contractor will maintain compliance with all local, state, and federal guidelines
`associated with the Covid 19 pandemic, as well as require all project workers to wear
`face covering masks, maintain social distancing whereverpossible, require contractors to
`immediately report to Contractor if they have been infected with Covid 19, or have been
`in contact with anyonethat has or had Covid 19, including co-workers and family
`members. Contractor agrees to exercise managementcontrol of any worker on the
`project as it relates to mitigating risk of spreading or contracting of Covid 19. Owner,at
`their discretion, may removeorprohibit access to the project for any worker deemed a
`risk orat risk of being infected by Covid 19.
`
`Owner Warranty & Responsibilities.
`
`

`

`Construction Agreement
`
`In additionto all other Ownerduties, the following apply:
`
`A. Ownership. Ownerwarrants that it has fee simple title to the Property.
`B. Access. Owner must provide Contractor and all employees, subcontractors, and
`suppliers of contractor with adequate access to the Project as required by Contractor to
`perform this Agreement.
`C. Survey. Owneris responsible for obtaining any reasonably necessary boundary
`surveys, site plans, foundation surveys, and final surveys.
`D. Easements and Zoning. Owner must provide any easements, variances, zoning
`changes, modifications to restrictive covenants, and other similar matters prior to
`commencement of the Project.
`E. Hazardous Materials. Ownerrepresentsthat it is not aware of any hazardous materials
`or substances as defined by the U.S. Environmental Protection Agency, including but not
`limited to, asbestos, polychlorinated biphenyl (PCB), and lead paint, to which Contractor
`or its employees or subcontractors may be exposed during work. If Contractor encounters
`or reasonably believes it has encountered any of these substances, it may stop work and
`removeits employees and subcontractors from the area until the nature of and remedy for
`the materials has been determined.If that information cannot be determined within a
`reasonable time, Contractor may terminate this Agreement and be compensated asfor
`Owner’s default under this Agreement. Tothe fullest extent permitted by Texas law,
`Ownerwill indemnify, hold harmless, and defend Contractor from any claims, including
`ones based on Contractor’s own,but not sole, negligence, arising out oforrelating to
`hazardous materials and substances.
`
`Subcontractors, Empolyees and Suppliers.
`Contractoris entitled to select the subcontractors, employees, and suppliers who will
`work on or provide materials for the Project. Contractoris solely responsible for hiring,
`firing, and supervising construction personnel. Ownerwill not interfere with construction
`personnelor negotiate with or retain any of Contractor’s employees or subcontractors
`without Contractor’s prior written consent.
`
`Concerns Inherant with remodeling Projects.
`A. Matching. Contractor will use reasonable efforts to match old and new materials and
`to patch damageto existing materials where they join new materials. But, the points of
`connection and patched areas may be detectable. Contractor hasnoliability or
`responsibility to make the old and new materials look identical or joints invisible.
`B. Property Damage. Contractorwill use reasonable efforts to minimize damageto
`existing improvements, including, without limitation, driveways, landscaping, lawns, and
`any other existing improvements on the Property. However, Contractor is not responsible
`orliable for minor incidental or consequential damages to the Property, other than the
`Project, or to Owner’s personal property. Owneris responsible for removingorprotecting
`personalproperty, furniture, landscaping, and other itemsin the vicinity of the Project.
`Contractor agrees to Owner’s request to provide additional care to exterior landscaping,
`lawns, hardscapes, and fencing typically associated with remodel construction projects of
`this kind. Owneragrees that such care may be subject to additional but nominalcosts.
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`Construction Agreement
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`C. Assumption of Risk & Disturbance. Owner understands and acknowledgesthat
`during the course of construction, the residence may not be safe for non-construction
`personnel. Ownerassumesall risks for Owner, family members, invitees, agents, or
`guests, including without limitation, personal injury from, relating to or associated with,
`the Project or Contractor’s performance, except for gross negligence or willful injury.
`D. Noise and Dirt. Loud noise, dust, dirt, and general commotion can be expected during
`construction. Owner understands and acknowledgesthat these conditions may exist from
`approximately 7:00 a.m. to 6:00 p.m., Monday through Saturday. Contractor agrees to
`makebest efforts to mitigate such Noise and Dirt, including the use of coverings,daily
`close-ups, the use of dust collectors where suitable, and other on-going steps to ensure the
`property is kept as clean and debris free as possible. Ownerwill be solely responsible for
`addressing any related concerns of neighbors.
`E. On-Site Utilities and Facilities. Unless otherwise agreed in writing, Contractor and
`its subcontractors and employees mayusethe utility services, water supply, and a
`designated bathroom within the Project without charge.
`F. Exclusions. Unless specifically included in the Construction Specifications and
`Allowancesor the Plans, the Project specifically excludes: changing electrical service or
`electrical equipmentthat is in violation of the applicable electrical or building codes and
`identification, detection, abatement, encapsulation, handling, or removal of any
`hazardous materials or substances as defined by the U.S. Environmental Protection
`Agency.
`
`Walk-Throughs.
`(a) Pre-drywall walk. Before sheet rock installed
`(b) Project Orientation List. Upon Substantial Completion, the Parties will inspect
`the Project and prepare, sign and date a Project Orientation List listing all items
`that remain to be completed in accordance with the Construction Standards,
`including any noted in previous inspections.
`-Corrective Work. Contractor will use its best efforts to satisfactorily complete all
`items on the Project Orientation List within a reasonable time and with minimal
`disturbance to Owner,but thelisting of any item will not permit Owner to
`withhold or delay final payment.
`
`Currency
`Except as otherwise provided in this Agreement, all monetary amountsreferred to in this
`Agreement are in USD (USDollars).
`
`Compensation
`The Contractor will charge the Owner for the Services as follows (the "Compensation"):
`
`- In & Out General Contracting Services, LLC will invoice client weekly (every Friday).
`
`Invoices submitted by the Contractor to the Ownerare due within five days ofreceipt.
`Payment via Credit Card are acceptable.
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`Construction Agreement
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`In the event that this Agreementis terminated by the Ownerprior to completion of the
`Services but where the Services have been partially performed, the Contractor will be
`entitled to pro rata payment of the Compensation to the date of termination provided that
`there has been no breach of contract on the part of the Contractor.
`
`Reimbursement of Expenses
`The Contractor will be reimbursed from time to time for reasonable and necessary
`expenses incurred by the Contractor in connection with providing the Services.
`
`All expenses must be pre-approved by the Owner.
`
`Penalties for Late Payment
`Anylate payments will trigger a fee o