1.1 Purpose. Contractor agrees to furnish labor, supervision, and materials to construct and install the swimming pool and related improvements described in Exhibit A (the "Work") at the Site, subject to the terms of this Agreement.
1.2 Contract Documents. The "Contract Documents" consist of: (a) this Agreement; (b) Exhibit A (Scope, Specifications, and Pricing Sheet, which includes the Contract Price, allowances, payment schedule, and project drawings); (c) Exhibit B (Start-Up & Maintenance Acknowledgment); (d) if applicable, Exhibit C (Change Order Form); and (e) any written, signed addenda. If there is a conflict, the documents are interpreted in the order listed above.
3.1 Contract Price. The total price for the Work is the amount set forth in Exhibit A (the "Contract Price"), subject to additions and deductions by approved Change Order and Allowance true-ups.
3.2 Payment Schedule. Owner shall pay in accordance with the payment milestones set forth in Exhibit A. Payments are due upon completion of each milestone stated in Exhibit A (or upon the calendar date stated, if applicable), whichever occurs first.
3.3 No Pay-If-Paid. Owner's obligation to pay is not contingent on Contractor receiving payment from any lender, insurer, or third party.
3.4 Late Payments; Suspension. Amounts not paid within three (3) calendar days of the due date accrue interest at the lesser of one and one-half percent (1.5%) per month (18% per annum) or the maximum rate permitted by Utah law, plus reasonable collection costs. Contractor may suspend Work upon written notice if any payment is overdue. The schedule will be extended for all suspension days plus reasonable remobilization time and costs.
3.5 Title to Equipment and Materials. Title to equipment and specially-ordered materials remains with Contractor until paid in full. Owner grants Contractor a purchase money security interest in such items to the extent allowed by law, and authorizes Contractor to file UCC-1 financing statements to perfect that interest.
3.6 Lien Rights; State Construction Registry. Owner acknowledges that Contractor, subcontractors, and suppliers may file preliminary notices in Utah's State Construction Registry and may have mechanics' lien rights under Utah Code Title 38, Chapter 1a, for unpaid labor and materials. Contractor may file all notices required to preserve those rights.
3.7 Residence Lien Restriction (Utah Code § 38-11-204). Owner is advised that payment in full to Contractor may, under certain circumstances, not protect Owner from a lien by a subcontractor or supplier. Owner should request lien waivers from each party furnishing labor or material before making final payment. Owners of owner-occupied residences may have additional rights under Utah Code Title 38, Chapter 11 (Residence Lien Restriction and Lien Recovery Fund Act).
4.1 Included Work. The Work is limited to the items expressly listed in Exhibit A. Nothing shown on drawings, referenced by model number, or discussed orally is included unless listed in Exhibit A.
4.2 Excluded Work (Unless Specifically Included in Exhibit A). The following are excluded and are Owner's responsibility: landscape restoration beyond rough grading; irrigation systems; fences, gates, and code barriers beyond what is specifically included; retaining walls; demolition beyond noted; tree removal; relocation of utilities; electrical panel upgrades or sub-panels; gas service upgrades; soil reports or geotechnical engineering; drainage beyond the pool area; hardscape or flatwork not specifically described; water feature upgrades; and any work performed by Owner's other contractors.
4.3 Allowances and Selections. Owner is responsible to make selections by the deadlines provided by Contractor. Delayed selections extend the schedule and may increase costs.
4.4 Measurement Tolerances. All dimensions are approximate and subject to reasonable construction tolerances and field conditions. Variations that do not materially affect intended use are not a breach.
5.1 Written Change Orders Required. Any change to the Work, materials, specifications, or schedule must be documented on a written Change Order (Exhibit C) signed by both Parties before the changed work begins. Oral statements, field discussions, and emails alone are not binding.
5.2 Pricing of Changes. Change Orders will be priced as (a) a lump sum agreed in writing, or (b) time and materials at Contractor's then-current rates plus material cost, subcontractor markup, and a markup of twenty percent (20%) to cover overhead and profit.
5.3 Owner-Requested Acceleration or Resequencing. If Owner requests acceleration, out-of-sequence work, partial demobilization or remobilization, or schedule changes, Owner will pay all added costs and schedule extensions by Change Order.
5.4 Market or Availability Escalation. For long-lead items (e.g., heaters, covers, automation, shell materials), if manufacturer or supplier pricing increases after contract signing due to documented supplier changes, tariffs, or freight surcharges, Owner will pay the increase as a pass-through, without additional markup unless otherwise stated in Exhibit A.
5.5 Unforeseen Site Conditions. If Unforeseen Site Conditions are encountered, Contractor may (a) issue a Change Order for added work, cost, and time; (b) stop work until the Parties agree on a solution; or (c) terminate under Section 17. Owner is responsible for all additional costs, including dewatering, rock removal, over-excavation and engineered backfill, shoring, or redesign.
6.1 Estimated Timeline. Contractor will use commercially reasonable efforts to commence and substantially complete the Work within the estimated number of Working Days stated in Exhibit A, beginning on the Start Date stated in Exhibit A. Time is not of the essence unless expressly stated in Exhibit A.
6.2 No Liquidated Damages. Unless expressly stated in Exhibit A, there are no penalties or liquidated damages for delay.
6.3 Excusable Delays. The schedule is automatically extended for excusable delays, including weather; inspections; permit processing; utility locates; material shortages; subcontractor availability; labor disputes; acts of God; governmental action; and Owner-caused delays, including late selections, late payments, interference, or failure to provide access.
6.4 Owner-Caused Delay Costs. If Owner delays the Work more than thirty (30) calendar days in the aggregate, Owner will pay reasonable standby, storage, escalation, and remobilization costs, documented by Contractor and processed by Change Order.
7.1 Permits. Unless Exhibit A states otherwise, Contractor will obtain pool construction permits for the pool Work. Owner is responsible for HOA approvals, architectural-review approvals, variances, and fees not included in Exhibit A.
7.2 Code Compliance. Contractor will perform the Work consistent with the Utah State Construction Code (Utah Code Title 15A) and applicable local amendments in effect at the time of permit issuance. Owner acknowledges that barrier, fence, and safety requirements under the adopted International Swimming Pool and Spa Code vary by jurisdiction and must be satisfied before final inspection and/or plaster or fill as required by the local authority having jurisdiction.
7.3 Inspections. Owner shall provide access for inspections and shall not interfere with inspection scheduling. Inspection failures caused by Owner-provided items (e.g., barrier, electrical service, drainage) are Owner's responsibility and extend the schedule.
8.1 Access. Owner shall provide clear access to the Site for Contractor's equipment, including delivery trucks and concrete and plaster trucks. If access is restricted, Owner bears the cost of alternative methods (e.g., crane, conveyor, hand-carry).
8.2 Utility Locates. Contractor will request public utility locates through Blue Stakes of Utah (Utah 811) as required by Utah Code § 54-8a-1 et seq. Owner shall identify private utilities, irrigation lines, landscape lighting, septic components, and other buried facilities not marked by public locate services. Owner bears risk and cost for unmarked private lines.
8.3 Existing Improvements. Contractor is not responsible for damage to lawns, landscaping, sprinklers, curbs, driveways, patios, underground lines, or structures in the access path or work area unless caused by Contractor's gross negligence or willful misconduct.
8.4 Soil, Compaction, and Settlement. Excavation and backfill may cause settlement or cracking of adjacent improvements. Unless Exhibit A states otherwise, Contractor does not warrant against settlement, cracking, or movement in flatwork, patios, decks, or structures not installed by Contractor.
10.1 Construction Site Hazards. The Site will contain open excavations, materials, and equipment. Owner assumes all risk of injury to Owner, household members, guests, and invitees arising from entry into restricted construction areas.
10.2 Owner Duty to Control Access. Owner shall secure the Site during construction, including child and pet control and temporary barriers if required. Contractor is not responsible for trespassers or unauthorized entry unless caused by Contractor's willful misconduct.
10.3 Weather and Water. Rain, snowmelt, groundwater, and freeze conditions may affect excavation stability and schedule. Contractor is not responsible for rain damage or damage from Owner's failure to maintain water levels or freeze protection after start-up.
10.4 Pool Use Risk Acknowledgment. Owner acknowledges that swimming pools involve inherent risks, including drowning, slips, and diving injuries. Owner agrees to maintain required safety features (barriers, alarms, covers) and to supervise users. Contractor does not guarantee safety outcomes.
11.1 Subcontractors. Contractor may use qualified subcontractors and suppliers and remains responsible for coordinating the Work.
11.2 Material Substitutions. If specified materials are unavailable or discontinued, Contractor may propose functionally equivalent substitutions. Owner approval will not be unreasonably withheld, and any cost or time impact will be handled by Change Order.
11.3 Special Orders. Special-order items may be non-returnable. If Owner cancels after Contractor has placed the order, Owner pays all cancellation and restocking fees and costs incurred.
12.1 Contractor Workmanship Warranty. Contractor warrants its workmanship to be free from defects for one (1) year from Substantial Completion, except as excluded below.
12.2 Structural Shell Warranty. The pool shell and structure shall be covered solely by the manufacturer's written warranty, if any. Contractor does not provide any separate structural warranty beyond applicable manufacturer warranties. Owner shall look exclusively to the manufacturer for any claims relating to the pool shell or structure and shall be responsible for pursuing such claims directly with the manufacturer.
12.3 Exclusions. Warranties do not cover: (a) plaster or finish discoloration, staining, mottling, shrinkage cracking, or craze cracking due to water chemistry, freeze/thaw cycles, or maintenance; (b) cracks, shifting, or settling of concrete decks, coping, or tile; (c) damage from soil movement, expansive soils, groundwater, hydrostatic pressure, or "pool float"; (d) damage from misuse, abuse, neglect, improper chemicals, improper winterization, or failure to maintain water levels; (e) acts of God; (f) third-party work; (g) salt system corrosion and related damage; and (h) normal wear items (seals, O-rings, light bulbs, gaskets).
12.4 Manufacturer Warranties. Pumps, heaters, filters, automation, lights, covers, and accessories carry manufacturer warranties only. Contractor will reasonably assist with warranty claims but does not provide additional warranties beyond those expressly stated.
12.5 Notice and Opportunity to Cure. Owner must provide written notice of any warranty claim within ten (10) days after discovery and must allow Contractor reasonable access and opportunity to inspect and cure before hiring others. Unauthorized repairs void the applicable warranties to the extent of the repair.
12.6 Exclusive Remedy; Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, OWNER'S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY IS REPAIR OR REPLACEMENT OF DEFECTIVE WORK. CONTRACTOR IS NOT LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12.7 Magnuson-Moss Disclosure. If Contractor provides any written consumer-product warranty subject to the federal Magnuson-Moss Warranty Act, Owner acknowledges receipt or opportunity to review such warranty before the sale.
13.1 Owner Maintenance Obligation. After start-up, Owner is solely responsible for ongoing water chemistry, cleaning, winterization, and operation, unless Owner separately contracts with Contractor or another provider for maintenance service.
13.2 Water Chemistry Limits. Owner shall maintain water chemistry per manufacturer and industry guidelines (pH, total alkalinity, calcium hardness, sanitizer, and total dissolved solids). Improper chemistry can void finish and equipment warranties.
13.3 Freeze Protection. Freeze-guard devices are not a guarantee against freezing damage. Owner must monitor weather and operate equipment accordingly, particularly during Utah winter conditions and early-season cold snaps.
13.4 Training. Contractor will provide basic orientation at start-up (see Exhibit B). Owner acknowledges that continued safe operation requires reading and following manufacturer manuals.
14.1 Soil and Geotechnical. Unless Exhibit A includes engineered design based on a geotechnical report, Contractor relies on Owner's representations that soil conditions are suitable for standard residential pool construction.
14.2 Engineering Requests. If the building official, HOA, or engineer requires modifications beyond standard methods (e.g., piering, over-excavation, structural redesign), Owner pays all engineering and added construction costs by Change Order.
14.3 Hazardous Materials. Contractor is not responsible for the discovery, removal, or handling of hazardous materials, including asbestos or contaminated soil. If encountered, Work will stop and Owner will arrange remediation at Owner's cost.
15.1 Contractor Insurance. Contractor will maintain commercial general liability insurance with limits of not less than $1,000,000 per occurrence / $2,000,000 aggregate, automobile liability, and workers' compensation insurance as required by Utah law. Certificates available on request.
15.2 Owner Property Insurance. Owner is responsible to maintain property insurance covering the Site and existing improvements. Damage from excluded causes (e.g., weather events, earth movement) is Owner's responsibility.
15.3 Risk of Loss to Work. Risk of loss to completed portions of the Work passes to Owner at Substantial Completion or when Owner fills or uses the pool, whichever occurs first.
16.1 Walk-Through. Upon Substantial Completion, Contractor will schedule a walk-through. Owner shall provide a written punch list within three (3) business days. Items not listed are deemed accepted.
16.2 Final Payment. Final payment is due upon Substantial Completion (or as stated in Exhibit A) and is not conditioned on completion of minor punch-list items that do not prevent use.
16.3 Withholding. Owner may not withhold payment for disputed items unrelated to the milestone invoiced. If Owner disputes any amount, Owner must timely pay the undisputed portion.
17.1 Owner Default. Owner is in default if Owner fails to pay when due, denies access, interferes with Work, or otherwise breaches this Agreement. Contractor may suspend Work, terminate, and recover: (a) costs incurred; (b) restocking and cancellation fees; (c) demobilization; (d) reasonable overhead and profit on Work performed and on the remaining Work, as allowed by law; and (e) attorney fees and costs.
17.2 Contractor Default. If Contractor materially breaches and fails to cure within a reasonable time after written notice, Owner's remedy is limited to actual direct damages, subject to Section 19 (Limitation of Liability).
17.3 Termination for Cause by Contractor. Contractor may terminate if Owner fails to cure nonpayment or material breach within five (5) business days after written notice (or sooner if safety requires).
18.1 Negotiation. The Parties will first attempt in good faith to resolve disputes through direct negotiation between decision-makers.
18.2 Mediation. If not resolved within thirty (30) days of written notice of dispute, either Party may demand mediation through a mutually agreed mediator in Salt Lake County, Utah. Mediation is a condition precedent to litigation or arbitration, except for emergency injunctive relief and lien-related filings.
18.3 Disputes/Arbitration. Disputes shall be resolved by binding arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules, before one arbitrator, seated in Salt Lake County, Utah. Judgment on the award may be entered in any court of competent jurisdiction.
18.4 Small Claims; Collection. Contractor may pursue collection of undisputed overdue amounts in court without first mediating.
18.5 Attorney Fees. The prevailing party is entitled to recover reasonable attorney fees, costs, and expert fees in any action arising from this Agreement, as allowed by Utah law (including Utah Code § 78B-5-826, where applicable).
19.1 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR'S TOTAL LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO CONTRACTOR UNDER THIS AGREEMENT. CONTRACTOR IS NOT LIABLE FOR LOST USE, LOSS of ENJOYMENT, LOST PROFITS, DIMINUTION IN VALUE, OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES.
19.2 Indemnity by Owner. Owner shall indemnify, defend, and hold Contractor harmless from third-party claims arising from (a) Owner's failure to maintain required safety barriers or alarms; (b) Owner's use or operation of the pool after Substantial Completion; (c) claims by adjacent property owners for access granted by Owner; (d) Owner's other contractors; or (e) Owner's misrepresentations or breach of this Agreement, except to the extent caused by Contractor's gross negligence or willful misconduct.
All notices under this Agreement must be in writing and delivered by (a) personal delivery; (b) U.S. certified mail, return receipt requested; or (c) email with electronic confirmation of delivery, sent to the addresses listed on the signed Exhibit A (or, for notices to Contractor, the address shown at the end of this Agreement), or as updated by written notice. Notice is effective on receipt (or, for certified mail, three (3) business days after deposit).
