1. EXCLUSIONS: UNLESS agreed to in writing, AVANTI SHALL NOT provide, or be responsible for, any of the following: demolition; installation of “embedded” items; conduit line runs for all equipment, beverage lines and conduits; roof penetrations for floor, wall, or ceiling; sleeves; core drilling; general carpentry, including but not limited to backing and blocking; structural hood supports; ducts, fans, and/or blowers; masonry and/or tile work; provision or installation of fiberglass reinforced plastic or any and all mechanical, electrical, and plumbing connections; composite crews, seismic calculations and/or installation; floor sinks; condensate drains for walk-in coolers; interfacing and/or wiring of fire suppression system to building main alarm or life safety; electrical shunt trip and/or contactors and any other controlling switch and/or micro switch; participation in any cooperative assessment for trash removal and/or trade damages; cranes; forklifts; grade-alls; bid bond; performance and/or payment bond; union labor; or overtime for any “field” labor; obtaining any required permits, licenses, or otherwise, including, but not limited to, hood permit(s) and walk-in cooler permit(s), and ensuring work is in compliance with applicable laws, codes, regulations, etc.; removing protective plastic on equipment; or supplying soap or towels for dispensers. Further, AVANTI is not responsible for the clean up related to any equipment including, but not limited to, removing plastic covering, paper, dusting, mopping, or window cleaning. Client assumes responsibility for ensuring that all work done at the jobsite is performed in compliance with all applicable laws. The general contractor or plumbing/electrical contractor(s) are responsible for all code compliant work, including, but not limited to, piping all gas, electrical and water lines, and individual quick disconnects. Client agrees to provide an on-site trash receptacle for all carton and trash disposal.
2. INSTALLATION AND DELIVERY: Unless otherwise noted below, all equipment delivered pursuant to this Agreement, including any addendums and modifications, shall be drop shipped to the Project address, and Client shall be responsible for any rigging, unpacking, and installation of equipment.
3. INSPECTION UPON DELIVERY: Client shall ensure it is available to inspect any and all equipment delivered to the jobsite at the time of delivery. As between AVANTI and Client, upon delivery of equipment to the jobsite, title to equipment transfers to Client. Client shall notify AVANTI of any concealed damages to equipment not later than 24 hours following delivery by AVANTI. If equipment is delivered or shipped by anyone other than AVANTI, or its contracted shipper, AVANTI shall have no responsibility to assist Client regarding claims for concealed damage. AVANTI is not responsible for security, vandalism, loss, or damage to equipment following its delivery to the jobsite.
4. DELIVERY AND INSTALLATION: The Delivery and Installation (if applicable) provisions of this Agreement are expressly conditioned upon: (1) the existence of a ground floor kitchen location, with adequate access as required by AVANTI, and (2) straight-time hours and non-union labor.
a. Unless specifically agreed to in writing by AVANTI, Client agrees AVANTI is not responsible for obtaining any applicable permits, licenses, or related approvals pertaining to the labor provided. AVANTI does not warrant that any work preformed by AVANTI or its agents will be in compliance with any applicable laws, codes, licenses, zoning restrictions, and Client shall be responsible for ensuring such compliance and/or the use and supervision of such work by their licensed contractor(s) as may be required by law.
5. ELECTRICAL CONSIDERATIONS: All electrical “stub-outs” and “stub-ups” with wire installed in conduits must be completed before start of any kitchen equipment installation. 220v & 110v must be available for any equipment installation. Client’s contractor(s) are responsible for all internal wiring of coils and component controls in all of the remote refrigeration units as well as running the defrost controls to compressors. This includes providing power for drain line heater cable inside the box on exposed drain lines that penetrate any freezer compartments. Remote refrigeration components located inside the building, or on the roof of the building must have all electrical junction boxes mounted at that location with shut-off prior to the start of refrigeration installation. Contractor must have final power turned on before any remote refrigeration startup can be performed.
6. PLUMBING CONSIDERATIONS: Client’s general, plumbing, or electrical contractors are responsible for installing any and all water filters, for running all drain lines from walk-in cooler/freezer, any remote refrigeration units, and all other drains, , and for supplying and installation of all floor sinks. Gas and water must be available before startup of any kitchen equipment can be performed.
7. INDEMNIFICATION: In the event AVANTI is made a party to or otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (hereinafter a "Proceeding”) arising out of or related to any alleged services or equipment provided, delivered or installed by, or any other type of work performed by, AVANTI, its agents, or any contractors, subcontractors or other agents of Client at the project address, Client agrees to indemnify, hold harmless, and defend AVANTI in any Proceeding instituted by any third party, including without limitation, any judgments, penalties, fines, settlements and reasonable expenses (including, without limitation, attorneys' fees) actually incurred by AVANTI in connection with any such Proceeding. These provisions shall apply regardless of whether the claim or remedy sought is based upon state or federal law, any contractual relationships or provisions, alleged violation of an oral or written warranty, representation, rule, regulation, requirement, zoning restriction, or any tort-based claim. The indemnification provided shall not extend to any matter in which the final disposition of the Proceeding determines that the conduct of AVANTI or its agents constituted intentionally reckless or willful misconduct. As a condition to the indemnity set forth above, AVANTI agrees to give Client prompt notice of any such Proceeding.
8. CONSEQUENTIAL DAMAGES: For the protection of both parties, in the event of any dispute arising from or related to this agreement, both parties hereby waive any claims for consequential or lost profits damages as against each another.
9. ENTIRE AGREEMENT / MODIFICATION / CONSTRUCTION: This Agreement constitutes the entire agreement between the parties and it is a complete and exclusive statement of the promises, representations, negotiations, discussions, and other agreements that have been made in connection with this project. All other agreements are superseded and excluded. Any modification or amendment to this Agreement must be made in writing and signed by the parties. This agreement is deemed drafted and reviewed by both parties equally, and with the benefit of each parties’ respective counsel of choice.
10. WAIVER OF BREACH: Failure by a party to declare or act upon one or more breaches of this Agreement or its terms by the other party shall not operate as a waiver by that non-declaring party of any of their rights or remedies under this Agreement.
11. AUTHORITY / COUNTERPARTS / FACSIMILE: Each signatory to this Agreement represents and warrants that they are duly authorized to enter into and execute this agreement on behalf of the entity they represent. This agreement may be executed in counterparts, and a facsimile of the executed agreement, or any counterpart, shall be enforceable as an original.
12. ARBITRATION / ATTORNEY’S FEES: For the protection of both parties, in the event of any dispute arising from or related to this agreement, it is agreed that the dispute shall be submitted to arbitration before a mutually agreeable single arbitrator of the American Arbitration Association within the County of Sacramento, California in accordance with the rules promulgated by that association. If an arbitrator cannot be agreed upon within 30 days of any party’s demand for arbitration under this Agreement, either party may move the Superior Court for the County of Sacramento for an order appointing an arbitrator pursuant to California law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof and shall be binding upon the parties. In the event of any litigation or arbitration, or any appeal, the prevailing party shall be entitled to recover any and all reasonable attorney’s fees and other costs incurred in the proceedings, including any arbitrator’s fees and costs.
BY ACCEPTING THE TERMS ABOVE, EACH PARTY HEREBY AGREES TO AND ACCEPTS THE ABOVE STATED TERMS AND CONDITIONS.
