Brennan Terms of Service
Contractor’s Disclosure Statement for Residential Construction
Know Your Rights and Responsibilities under the Law. You are about to enter into a transaction to build a new home or remodel an existing residential property. Texas law requires your contractor to provide you with this brief overview of some of your rights, responsibilities, and risks in this transaction.
Conveyance to Contractor Not Required. Your contractor may not require you to convey your real property to your contractor as a condition to the agreement for the construction of improvements on your property.
Know Your Contractor. Before you enter into your agreement for the construction of improvements to your real property, make sure that you have investigated your contractor. Obtain and verify references from other people who have used the contractor for the type and size of construction project on your property.
Get It in Writing. Make sure that you have a written agreement with your contractor that includes (1) a description of the work the contractor is to perform; (2) the required or estimated time for completion of the work; (3) the cost of the work or how the cost will be determined; and (4) the procedure and method of payment, including provisions for statutory retainage and conditions for final payment. If your contractor made a promise, warranty, or representation to you concerning the work the contractor is to perform, make sure that promise, warranty, or representation is specified in the written agreement. An oral promise that is not included in the written agreement may not be enforceable under Texas law.
Read Before You Sign. Do not sign any document before you have read and understood it. Never sign a document that includes an untrue statement. Take your time in reviewing documents. If you borrow money from a lender to pay for the improvements, you are entitled to have the loan closing documents furnished to you for review at least one business day before the closing. Do not waive this requirement unless a bona fide emergency or another good cause exists, and make sure you understand the documents before you sign them. If you fail to comply with the terms of the documents, you could lose your property. You are entitled to have your own attorney review any documents. If you have any question about the meaning of a document, consult an attorney.
Get a List of Subcontractors and Suppliers. Before construction commences, your contractor is required to provide you with a list of the subcontractors and suppliers the contractor intends to use on your project. Your contractor is required to supply updated information on any subcontractors and suppliers added after the list is provided. Your contractor is not required to supply this information if you sign a written waiver of your rights to receive this information.
Monitor the Work. Lenders and governmental authorities may inspect the work in progress from time to time for their own purposes. These inspections are not intended as quality control inspections. Quality control is a matter for you and your contractor. To ensure that your home is being constructed in accordance with your wishes and specifications, you should inspect the work yourself or have your own independent inspector review the work in progress.
Monitor Payments. If you use a lender, your lender is required to provide you with a periodic statement showing the money disbursed by the lender from the proceeds of your loan. Each time your contractor requests payment from you or your lender for work performed, your contractor is also required to furnish you with a disbursement statement that lists the name and address of each subcontractor or supplier that the contractor intends to pay from the requested funds. Review these statements and make sure that the money is being properly disbursed.
Claims by Subcontractors and Suppliers. Under Texas law, if a subcontractor or supplier who furnishes labor or materials for the construction of improvements on your property is not paid, you may become liable and your property may be subject to a lien for the unpaid amount, even if you have not contracted directly with the subcontractor or supplier. To avoid liability, you should take the following actions:
- If you receive a written notice from a subcontractor or supplier, you should withhold payment from your contractor for the amount of the claim stated in the notice until the dispute between your contractor and the subcontractor or supplier is resolved. If your lender is disbursing money directly to your contractor, you should immediately provide a copy of the notice to your lender and instruct the lender to withhold payment in the amount of the claim stated in the notice. If you continue to pay the contractor after receiving the written notice without withholding the amount of the claim, you may be liable and your property may be subject to a lien for the amount you failed to withhold.
- During construction and for thirty days after final completion, termination, or abandonment of the contract by the contractor, you should withhold or cause your lender to withhold 10 percent of the amount of payments made for the work performed by your contractor. This is sometimes referred to as “statutory retainage.” If you choose not to withhold the 10 percent for at least thirty days after final completion, termination, or abandonment of the contract by the contractor and if a valid claim is timely made by a claimant and your contractor fails to pay the claim, you may be personally liable and your property may be subject to a lien up to the amount that you failed to withhold.
If a claim is not paid within a certain time period, the claimant is required to file a mechanic’s lien affidavit in the real property records in the county in which the property is located. A mechanic’s lien affidavit is not a lien on your property, but the filing of the affidavit could result in a court imposing a lien on your property if the claimant is successful in litigation to enforce the lien claim.
Some Claims May Not Be Valid. When you receive a written notice of a claim or when a mechanic’s lien affidavit is filed on your property, you should know your legal rights and responsibilities regarding the claim. Not all claims are valid. A notice of a claim by a subcontractor or supplier is required to be sent, and the mechanic’s lien affidavit is required to be filed, within strict time periods. The notice and the affidavit must contain certain information. All claimants may not fully comply with the legal requirements to collect on a claim. If you have paid the contractor in full before receiving a notice of a claim and have fully complied with the law regarding statutory retainage, you may not be liable for that claim. Accordingly, you should consult your attorney when you receive a written notice of a claim to determine the true extent of your liability or potential liability for that claim.
Obtain a Lien Release and a Bills-Paid Affidavit. When you receive a notice of claim, do not release withheld funds without obtaining a signed and notarized release of lien and claim from the claimant. You can also reduce the risk of having a claim filed by a subcontractor or supplier by requiring as a condition of each payment made by you or your lender that your contractor furnish you with an affidavit stating that all bills have been paid. Under Texas law, on final completion of the work and before final payment, the contractor is required to furnish you with an affidavit stating that all bills have been paid. If the contractor discloses any unpaid bill in the affidavit, you should withhold payment in the amount of the unpaid bill until you receive a waiver of lien or release from that subcontractor or supplier.
Obtain Title Insurance Protection. You may be able to obtain a title insurance policy to insure that the title to your property and the existing improvements on your property are free from liens claimed by subcontractors and suppliers. If your policy is issued before the improvements are completed and covers the value of the improvements to be completed, you should obtain, on the completion of the improvements and as a condition of your final payment, a “completion of improvements” policy endorsement. This endorsement will protect your property from liens claimed by subcontractors and suppliers that may arise from the date the original title policy is issued to the date of the endorsement.
This Contract is subject to Chapter 27 of the TEXAS PROPERTY CODE. The provisions of that chapter may affect your right to recover damages arising from the performance of this Contract. If you have a complaint concerning a construction defect arising from the performance of this Contract and the defect has not been corrected through normal warranty service, you must provide notice regarding the defect to your contractor by certified mail, return receipt requested, not later than the 60th day before the date you file suit to recover damages in a court of law. The notice must refer to Chapter 27 of the TEXAS PROPERTY CODE, and must describe the construction defect. If requested by your contractor, you must provide your contractor an opportunity to inspect and cure the defect as provided by Section 27.004 et seq. of the TEXAS PROPERTY CODE.
Any dispute or claim arising out of, or relating to, this Contract shall be determined by arbitration before a single arbitrator, mutually selected by the parties. The venue of such proceeding shall be exclusively in Tarrant County, Texas. Any award rendered may be entered in any court having jurisdiction thereof. IF FOUND UNENFORCEABLE, THEN CUSTOMER WAIVES ITS RIGHT TO A JURY TRIAL AND CONSENTS TO A BENCH TRIAL BEFORE A COURT OF COMPETENT JURISDICTION.
Even though not required, customer voluntarily waives the right granted by section 53.256 of the Texas Property Code to receive an original or updated list of subcontractors and suppliers that Brennan intends to use to complete the work. Brennan requests this waiver as a reduction in administrative workload on its office staff to better focus on serving our customers via other project management measures. This waiver may not be cancelled at a later date.
IMPORTANT NOTICE: You and your contractor are responsible for meeting the Terms and Conditions of this Contract. If you sign this Contract and you fail to meet the Terms and Conditions of this Contract, you may lose your legal ownership rights in your home. KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW.
Terms and Conditions
- Changes/Modifications. Customer may add to or alter Brennan’s scope of Work, but cannot reduce the Work or the Contract Price unless agreed to in writing by Brennan or as otherwise provided herein. Any changes or additions to Brennan’s scope of Work (hereinafter, the “Changed Work”), whether requested orally or in writing, which involve extra costs to Brennan, will become an extra charge to the Contract Price. In such case, Brennan may submit a proposed written Change Order to Customer, detailing the estimated price to perform the Changed Work. If Brennan submits a proposed written Change Order, then Customer agrees to promptly review and accept or deny the Change Order, which may be accepted verbally, by executing the Change Order, or electronically by email, text, or other electronic messaging system. Any schedule for Brennan’s work shall be extended for any delays incurred as a result of the Customer’s delay in reviewing a Change Order, as well as for the time taken to complete the Changed Work. If Brennan chooses to perform Changed Work upon a request by Customer without obtaining a signed, written Change Order, then, any schedule shall be automatically extended to cover the additional time needed to complete the Changed Work and Customer agrees to remit payment of the additional costs incurred by Brennan in performing the Changed Work, plus general overhead costs and profit of 30%, less credit for Work not performed. Customer understands and agrees that not all product manufacturers can produce materials of every potential shape or size, and/or may have extended manufacturing lead times. Customers agree and consent to Brennan’s substitution of materials of other manufacturers that are of comparable or better grade and quality in the event the foregoing circumstances exist.
- Full payment of the Contract Price is due at Substantial Completion, which shall mean installation of all materials described in the scope of Work to a condition where Customer could occupy the premises, but excludes any punch list items. In the event the Work cannot be completed in one month, then Brennan shall be entitled to progress payments at the end of each month, or sooner if elected by Brennan, for the Work completed since the prior progress payment. In such circumstance, final payment will be due immediately upon Substantial Completion.
- Customer agrees to allow access to their home to Brennan’s representatives at a time mutually agreed upon by both parties. In the event Customer fails to allow access to the Property at the agreed upon time, then Brennan shall be entitled to an extension to any Schedule for the Work and entitled to a fee of $500.00 for lost wages each time its workers go to the Property and are unable to access the Property. If the Customer does not allow access to the Property within 1 month of Brennan contacting the Customer to coordinate scheduling, Brennan has the right to charge a daily storage fee of $50.00 or an amount equal to the costs Brennan suffers as a result, whichever is greater, until the day of the install. Any representations for the dates for performance of the Work are estimates and are made in good faith, but are not guaranteed. Brennan shall not be responsible for any delays caused by Customer, other residents in the Property, other contractors, hidden/defective conditions at the Property, or any Force Majeure event.
- Brennan will pass on to Customer any manufacturer warranty on products installed by Brennan, but Brennan does not independently warrant the actual product. In the event a product is defective, Customer will need to make a warranty claim with the product manufacturer or contact Brennan to assist in facilitation of the warranty process. Customer agrees that any warranty claim against a product manufacturer is not the responsibility of Brennan and is not grounds to withhold payment from Brennan. Further if Brennan is requested to install any replacement products, Customer understands and agrees that there will be an additional charge for the labor costs Brennan incurs plus reasonable overhead and profit. Brennan cannot control whether a manufacturer will still be in business in the future and Customer waives and releases Brennan from any product warranty claims even if the manufacturer is no longer in business. This warranty is expressly conditioned upon the receipt of full payment of the Contract Price, plus any adjustments thereto. Excluded from this warranty is any damage or defect caused in whole or in part by: (1) storms, floods, tornado, lightning, hail, earthquake, or other Act of God; (2) the negligence or intentional act of a party not under Brennan’s control; (3) a modification or repair to Brennan’s Work, attempted or completed, by a party not under Brennan’s control; (4) a failure in the structure or substrate beneath on which Brennan performs its work; (5) ordinary wear and tear; or (6) any defective product purchased by Brennan from a product manufacturer. Customer agrees to provide Brennan with the first option to repair any item covered by its warranty. This warranty shall be voidable at Brennan’s option if any repairs or modifications to its Work are performed or attempted by someone other than Brennan prior to Brennan being given written notice of the defect and failed to repair the defect. CUSTOMER WAIVES AND RELEASES BRENNAN FROM ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY DEFECT COVERED BY THIS WARRANTY, AND IN NO EVENT SHALL BRENNAN'S LIABILITY EXCEED THE COST OF CORRECTING OR REPLACING THE DEFECTIVE CRAFTSMENSHIP. ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION HEREIN.
- Brennan requests that the Customer provide a clean and work-ready space for Brennan. All furniture, window treatments, artifacts, and personal items, are to be removed from the immediate vicinity of any area where construction will be taking place. If Brennan moves any items for the homeowner, this act is considered a courtesy for which Brennan is receiving no additional monetary exchange, and the homeowner agrees to hold Brennan harmless of any damage that may occur as a result. Customers who opt not to prepare a clean and work-ready space for Brennan, therefore, waive and release Brennan from any liability for damages that result from the following: (1) Hidden and/or preexisting conditions at the Property that may adversely affect Brennan’s ability to complete the Work for the Contract Price, including without limitation, rot, mold, termites, deterioration; and violations of zoning, classification, or building code; (2) Unmarked and damaged electrical, plumbing, telephone, security, heating, or air conditioning lines; (3) any damage to concrete or blacktop surfaces because of any dumpster or equipment used by Brennan; (4) any damages occurring to the homeowner's personal property items including but not limited to furniture, blinds, shutters, artifacts, and other interior or exterior personal items; and (5) the failure to exactly match any materials applied to the Property to the previously existing finishes thereat. Brennan will use its best efforts, but cannot guarantee an exact match. Customer understands and agrees that in the event any of the foregoing conditions are discovered, any work to perform remediation of such conditions will be considered a change/modification to the Contract and compensated in accordance with Paragraph 1. If Customer chooses not to have the previously existing condition remediated, THEN: (1) IT FOREVER WAIVES AND RELEASES BRENNAN FROM LIABILITY FOR ANY DAMAGES INCURRED BY CUSTOMER AS A RESULT OF IT CHOOSING NOT TO HAVE THE CONDITION REMEDIATED, and (2) Brennan may terminate this Contract and receive full payment of the Contract Price for all work completed up until termination and all close out costs.
- Force Majeure. Brennan is not responsible or liable for any failures in its performance that are caused by any Acts of God or other causes outside of its control, including without limitation: epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, droughts; strikes, lockouts, material shortages, industrial disturbances, acts of public enemies or terrorists, orders of any kind of governmental authority, insurrections, riots, arrests, restraints of government and people, civil disturbances, explosions; breakage or accidents to machinery, pipelines, pumps, or other facilities, or the partial or entire failure of necessary utilities.
- Permits, Inspections, Assessments, Testing. Unless otherwise specifically agreed to in writing by contractor, the Contract Price excludes any costs for permits, if required, including without limitations, assessments and supporting documents; testing, if required, expressly including without limitation lead paint testing required by the Environmental Protection Agency; and inspections, if required. All Costs for any of the foregoing shall either be paid directly by Customer or if paid by contractor, added to the Contract Price, plus 30% for overhead and profit.
- Attorney’s Fees. If either party retains an attorney to enforce any obligation of this Contract or to defend against any claim, then the prevailing party shall be entitled to recover all attorneys’ fees, costs, and expenses incurred in the litigation and/or arbitration.
- Merger/Severance. This Contract contains and includes the entire understanding of the parties. Any prior agreements, proposals, representations, understandings, and communications are hereby superseded and replaced by this Contract. If any provisions of this Contract should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Contract shall not be affected.
- Alarms. Brennan will make every attempt to reinstall alarm system to working order. However, it is recommended that customer have their alarm company test alarm system after work is complete. Brennan is not responsible for cost of test or repair.