Our Two Year Tradesman Warranty

Article 1: General Provisions:

  1. Overview of Warranty.

(1) This Express Warranty. The express warranty being provided by Contractor herein is a Two-Year Warranty, the terms of which are set forth herein. This Warranty is the only express or implied warranty being provided by Contractor and is the only warranty covering the Property, Work, and Project.  By signing the Construction Agreement (as defined below), Owner agrees to the Warranty and, further, acknowledges that Owner has read and understands the terms of the Warranty or has had an opportunity to inquire as to the meaning or significance of such provisions.  Further, the provisions contained within this Warranty supersede and prevail over any conflicting, differing, and/or general terms of any purchase agreement, construction agreement, or like agreement entered into between the Parties.

(2) Definitions.  Capitalized terms contained within this Warranty shall have the same meaning as the definition and meaning given to such terms within the underlying construction agreement, purchase agreement, or other underlying agreement (“Construction Agreement”) between the Parties for the Project, unless a different definition is expressly set forth herein. As used herein, “Work” has the same meaning given to the word “Work” and/or “Services” under the Construction Agreement. As used herein, “Substantial Completion” means that all Work has been completed except for any Punch List items, that the Work is sufficiently complete and in accordance with the Contract Documents such that Owner can occupy and utilize the House for all normal purposes, and/or that a certificate of occupancy has been issued for the House.

(3) Warranty Period. The warranty period (“Warranty Period”) under this Warranty is the Two-Year period following the date of Substantial Completion of the House or Work, date in which the certificate of occupancy was issued for the House, date of the closing on the new House, or date that Owner submitted the Final Payment to Contractor, whichever occurs first (“Commencement Date”).

Article 2: Items Covered by Builder’s Express Warranty:

  1. Items Covered by this Warranty. Under this Warranty, and during the Warranty Period, Contractor expressly agrees to reasonably repair or remedy, at its own cost, the following warranted items, assuming Owner has provided timely and proper written notice to Contractor and otherwise complied with the obligations under this Warranty:
  • Any part of the Work (which includes, by definition, all labor, services, and materials) or Materials that is materially noncompliant with the Contract Documents and/or materially below or nonconforming with the standard of care and generally recognized and accepted practices for the quality of the Work and Materials in the residential homebuilding industry in the geographic area in which the House is located and at the time of the Work, except to the extent such items are excluded under Article 3 or otherwise herein; and
  • Any additionally warranted items of Work expressly set forth in the below list, except to the extent such items are excluded under Article 3 or otherwise herein:
  • Envelope Leak: Any verifiable roof or other envelope leak will be repaired once during the Warranty Period, except for leaks resulting from Owner’s failure to maintain proper grade; Owner’s neglect in adjusting door thresholds; Owner’s failure to engage in periodic caulking in relation to exterior sealants used to seal doors, windows, and siding; ice buildups; rain driven into attic louvers/vents; overflowing gutters; or leaks that fall into the list of excluded items excluded from this Warranty that are set forth in Article 3.
  • Concrete: Concrete foundations, walls, patios, floors, driveways, sidewalks, and other cracks are covered under this Warranty if, and only if, the cracks were solely caused by defective concrete/materials or improper installation of the concrete that is below the standard of care and does not conform to the generally recognized and accepted practices in the local residential homebuilding industry and the cracks are substantial in size and substantially affect the functionality and use of the concrete. Owner acknowledges and agrees to the following: no concrete surface will remain crack-free; concrete cracks will happen and are simply the result of the natural expansion and contraction of the concrete, including due to weather variation; and cracks that are ¼ inch or less are not substantial and are instead normal cracks, and, as such, are not covered by this Warranty. Owner also acknowledges and agrees that surface patching is an acceptable method to remedy this item and that the patched areas will likely not exactly match the rest of the concrete and Contractor has no liable for the aesthetic result of any concrete patching.
  • Masonry Cracks: Stucco, stone, masonry, or brick cracks greater than 1/8 inch will be repaired once during the Warranty Period, but there is no guarantee as to the color match or pattern in such repair work, and Owner acknowledges and agrees that patching with a concrete sealant is an acceptable method to remedy this item.
  • Wood: Wood trim separations between joints that exceed 1/8 inch in width will be repaired, and Owner acknowledges and agrees that puttying and/or caulking are acceptable methods to remedy this item.
  • Wood Floors: Wood floors with a depression, ridge, or upward bow exceeding 1/2 inch within the diameter of the depression/ridge/upward bow, when measured parallel to the floor joist, will be repaired if, and only if, solely caused by defective wood/materials or improper installation of the floor that is below the standard of care and does not conform to the generally recognized and accepted practices in the local residential homebuilding industry.
  • Wood Floors: Wood floors exhibiting substantial and abnormal squeaking are covered under this Warranty if, and only if, the cracks were solely caused by defective wood/materials or improper installation of the floor that is below the standard of care and does not conform to the generally recognized and accepted practices in the local residential homebuilding industry, to the extent possible without removing the floor or ceiling finishes. Owner acknowledges and agrees to the following: no wood floor will be squeak/noise free and squeaking/noise within wood floors is normal. Owner also acknowledges and agrees that face-nailing is the acceptable method to remedy this item and Contractor has no liable for the aesthetic result of any face-nailing.
  • Walls: Walls with a bow exceeding 1/2 inch out of line in a 32-inch horizontal measurement, or 1/2 inch out of line in an 8-foot vertical measurement will be repaired, provided however that Owner agrees that interior and exterior walls, initially and after any wall repair, will have slight variances in their finished surface.
  • Carpet Seams: Carpet seams that open will be repaired during the Warranty Period.
  • Drywall: Nail pops in the walls or ceilings that break the surface paper will be repaired once during the Warranty Period, at the Two-Year follow-up call. Owner agrees that if nail pops are corrected, and if a paint touch-up is necessary of part of such warranty work, the color and texture match of the touched-up area may not exactly match the rest of the drywall.
  • Drywall: Drywall cracks will be repaired once during the Warranty Period, at the Two-Year follow-up call, provided however that minor dings, scratches, and other imperfections in the drywall are not covered by this Warranty. Owner agrees that if drywall cracks are corrected, and if a paint touch-up is necessary of part of such warranty work, the color and texture match of the touched-up area may not exactly match the rest of the drywall.
  • Electrical: Circuit breakers, wiring circuits, switches, outlets, electrical fixtures, and wiring that do not operate as intended will be repaired.
  • Plumbing: Toilets, sinks, baths/showers and other plumbing items that do not operate as intended will be repaired.
  • HVAC: Heating, air conditioning, and other HVAC equipment that does not operate as intended will be repaired.

Article 3: Items Excluded from Builder’s Express Warranty:

  1. Items Excluded From this Warranty. The following items are not covered or warranted under this Warranty:
  • Manufacturer Warranties on Materials:
  • All express manufacturer warranties are hereby assigned to Owner, and Contractor does not assume any obligation under those manufacturer’s warranties. Upon request, Contractor will assist Owner in submitting a warranty claim to the manufacturer. The Parties expressly agree that any appliance, item of equipment, or other item upon the Property that is a consumer product for the purposes of the Magnuson-Moss Act or that is otherwise covered by a manufacturer warranty, is entirely excluded from the coverage of this Warranty, and thus, any defect in, or claimed issue with, such appliances or equipment is excluded from this Warranty. The following are examples of such consumer products: refrigerator, stove/range, dishwasher, garbage disposal, microwave, air conditioner, furnace, hot water heater, clothes dryer and washer, thermostat, and automatic garage doors and openers.  Owner is responsible for obtaining and understanding any warranties from such manufacturer/installer.
  • Loss or damage to or relating to any pool, hot tub, spa, steam room, or recreational facility is hereby excluded from this Warranty. All express warranties, if any, from the manufacturer or installer of those items, are hereby assigned to Owner, and Contractor does not assume any obligation under those manufacturer/installer express warranties.
  • Loss or Damage Caused by Actions of Owner or Owner’s Agents and/or by Natural Causes:
  • Loss or damage, in whole or part, due to normal and ordinary wear and tear or deterioration.
  • Loss or damage, in whole or part, due to neglect or a lack of proper home maintenance, improper home maintenance, and/or any negligent or intentional action or omission, by Owner, Owner’s agent, or anyone other than Contractor and Contractor’s employees and subcontractors.
  • Loss or damage that is caused by, or made worse by, Owner’s failure to give immediate/emergency notice of the defect or problem to Contractor when such defect or problem may worsen, or cause further damage, over time (including, but not limited to, any issue relating to alleged water intrusion or the envelope of any structure upon the Property).
  • Loss or damage caused by changes in the grading or drainage patterns resulting from any act or omission by a person other than Contractor and/or its employees and subcontractors. Non-warranted items include changes in the drainage pattern due to, as well as any other damage or loss caused by, landscaping, the planting of trees, the installation of retaining walls, and/or the installation of concrete patios or walkways performed by any person other than Contractor and/or Contractor’s employees and subcontractors.
  • Loss or damage due to, or arising from, any structure being used primarily for nonresidential purposes.
  • Loss or damage caused by loading on floors that exceeds design load.
  • Damage or defects due to faulty materials supplied by, or poor or substandard workmanship performed by, parties other than Contractor and Contractor’s employees and subcontractors, including but not limited to design defects of an architect retained or hired by Owner.
  • Loss or damage from or caused by insects and animals; weather, wind, rain, hail, snow, other precipitation, flood or lightning; fire, explosion, or smoke; falling trees or other objects; earthquakes or other natural disasters, radon or other gases, or other acts of God.
  • Normal discoloration, imperfections, and variations in materials, as well as any other claimed defect that is a result of the natural characteristics of materials used on the Project, including but not limited to natural defects, discolorations, characteristics, and variations in brick, stone, masonry, paint, wood, mortar, caulk, concrete, stucco, shingles, porcelain, granite (such as streaking), stained cabinets and other stained wood, vinyl, plumbing and light fixtures, and tile. The aforementioned types of normal and/or natural defects or variations in materials include, but are not limited to, discoloration or fading of materials; warping, cupping, or bowing of wood; efflorescence (chalking) of brick, masonry, or concrete; and streaking of granite.
  • Minor drywall cracks, minor molding separations, and any other condition that is the result of the natural drying out and/or settling process of any structure upon the Property; minor imperfections in paint or paint touchups; and imperfections resulting from the use of smooth/flat drywall.
  • Cracking, flaking, peeling, shifting, settling, or pitting of paint, concrete (including foundation and footings), mortar, grout, or caulk due to natural causes, Owner neglect, or any other cause.
  • Depressions and low areas within the yard/Property are generally excluded, except to the extent the depression/low area was solely caused by defective Work or Materials that is below the standard of care and does not conform to the generally recognized and accepted practices in the local residential homebuilding industry, is substantial in size, and substantially affects the functionality and use of the yard.
  • Broken waterlines or broken sillcocks or faucets due to frozen water lines.
  • Conditions or defects due to radon gases. The parties agree that radon and radon gases are naturally created and exist everywhere and that Contractor provides no warranty regarding radon presence.
  • Other Items Excluded From Contractor’s Warranty
    • Loss or damage to any part of any structure upon the Property that was not part of the structure as originally constructed by Contractor.
  • Defects or any other problems with sod, trees and plants (collectively “Sod and Trees”) at any time after installation. Owner acknowledges and agrees that, once installed, Sod and Trees can die for a variety of reasons, including lack of watering by Owner, hot weather, lack of or too much precipitation, and unknown factors. Thus, Contractor solely warrants the proper installation of any and all Sod and Trees, and Contractor provides no warranty once those items are installed, provided however that Contractor hereby assigns to Owner any and all express warranties provided by its landscaper or tree supplier on the Sod and Trees.
  • Loss or damage related directly or indirectly to mold or other fungi except when the loss or damage is solely caused by Contractor’s breach of an obligation under this Warranty.
  • Loss or damage related to water intrusion except when the loss or damage is solely caused by Contractor’s breach of an obligation under this Warranty.
  • Loss or damage to or regarding wells, septic tanks, sewers and/or storm sewers.
  • Paint touchups.
  • Otherwise warranted items for which the requested repair would amount to economic waste or a betterment under the law.
  • Any Owner(s) or third party supplied materials, fixtures or workmanship including but not limited to appliances, ceiling fans, plumbing fixtures, lighting or fixtures installed or reinstalled (recycled) at the owners’ request. The Remodeler bears no liability or responsibility related to such materials, the installation of that material, or warranties related to damages cause by failure of owner supplied material.
  1. Excluded Damages Under this Warranty. CONTRACTOR’S TOTAL LIABILITY UNDER THIS WARRANTY, THE CONSTRUCTION AGREEMENT, AND THE CONTRACT DOCUMENTS IS LIMITED TO THE REASONABLE COST OF REPAIRING OR REMEDYING THE WARRANTED ITEM OF WORK. Contractor is not liable for any consequential or incidental damages, and the following damages are expressly excluded from this Warranty: loss of use, loss of opportunity, loss of rental value, and loss of or low market value of the Property; cost of shelter, transportation, food, moving, storage, or other expenses related to inconvenience or relocation; all other consequential, incidental, or secondary damages; loss caused by Owner’s failure to mitigate damages; and bodily/personal injury of any kind, and any associated medical or other incidental expenses, due to damage or loss to the Property.

Article 4: Other Provisions of this Warranty:

  1. Warranty Service Requests, Notice Requirements, and Other Provisions

(1) Warranty Service Requests: 6-month, 12 month, and 20-month requests. (a) Any defect covered by the Warranty and arising within the first six (6) months of the Warranty Period shall be set forth in a single written request from Owner to Contractor requesting Contractor remedy such defects and sent to Contractor no later than 6 months after the commencement of the Warranty Period (except for emergencies). If Owner does not submit a warranty request within the first 6 months, or otherwise within two weeks of receiving a correspondence from Contractor regarding warranty requests, whichever is earlier, then Owner’s warranty requests must wait until the Two-Year mark and must be submitted pursuant to subparagraph (b) herein. (b) All other defects covered by this Limited Warranty and arising within the Warranty Period shall be set forth in a single written request from Owner and sent to Contractor by the end of the Two-Year Warranty Period, or otherwise within 15 days of the end of the Two-Year Warranty Period; otherwise, all warranty requests and claims under the Two-Year Warranty are waived and released. (c) Emergency items shall be reported immediately to Contractor, including via telephone call, in addition to the required written request. An emergency item includes a defect resulting in an actual or potential imminent danger to the Property or its occupants. (d) Notwithstanding the foregoing, Contractor does not have an obligation to remedy items that Contractor disputes.

(2) Service/Notice Requirements. All repair/service requests made by Owner under the Warranty must be in writing to Contractor, must be received during the Warranty Period; must include a detailed description of each request for relief under the Warranty; and must be sent via email to Contractor’s Warranty Administrator, unless otherwise directed by Contractor. Owner is not entitled to relief under the Warranty unless Owner strictly satisfies all notice provisions.

(3) Remedy of Items. Contractor (including via its subcontractors and suppliers) will, weather conditions and labor/materials permitting, use reasonable efforts to promptly complete all items reported in Owner’s timely and properly submitted warranty requests; notwithstanding the foregoing, Contractor does not have an obligation to complete items that Contractor disputes. Owner acknowledges that, while Contractor agrees to address all warranty items for which Contractor has no dispute in a reasonable period of time, Contractor does not agree to any strict time period for addressing and completing warranty items.  Further, the Parties agree that, with Contractor’s prior permission, Owner is permitted to communicate directly with Contractor’s subcontractors and suppliers regarding any warranty items.

(4) Other Provisions. (a) Contractor, in its sole discretion and in lieu of performing repair or remediation work, can elect to pay Owner the reasonable cost of repairing or remedying the warranted item of Work. (b) This Warranty cannot be transferred and is only applicable to the Owner(s) named herein; thus, any obligation under this Warranty terminates if the Property is sold or ceases to be occupied by Owner. (c) If Contractor repairs or replaces, or pays the reasonable cost of repairing or replacing, any defect under the Warranty that is also covered by Owner’s insurance, then Owner must, upon Contractor’s request, assign the proceeds of such to Contractor to the extent of Contractor’s cost for such repair, replacement or payment. (d) Actions taken to correct actual or claimed defects do not extend the duration of the Warranty Provision.

  1. Remedy Provisions.

(1) Contractor’s Right to Notice and Opportunity to Inspect and Cure. In the event Owner believes Contractor has not fulfilled the terms of, or otherwise breached, this Warranty or the Construction Agreement, then Owner shall: (a) provide Contractor with written notice of each and every claimed breach/default, with such written notice describing with specificity each breach/default and the requested repair/remedy for each breach/default; and (b) provide Contractor with thirty (30) days to inspect the House and cure any such claimed breach/default.

(2) Commencement of Action. Owner may commence a legal action based upon a claimed breach under the Warranty or Construction Agreement if, and only if: (a) Owner has strictly complied with all warranty notification and procedural requirements set forth above; and (b) Owner has also strictly complied with the notice and cure prerequisites set forth above, and Contractor has failed to cure the alleged breach within the cure period.

(3) Mandatory Mediation and Arbitration Clause. (a) If a dispute arises under the Warranty, Construction Agreement or Property a Party must participate in a non-binding mediation prior to the commencement of any legal proceeding, if and only if requested, in writing, by the other Party within thirty (30) days of the existence or notice, whichever is sooner, of the dispute. (b) All claims and disputes relating to the Warranty, Construction Agreement or Property, except for any action by Contractor against Owner for foreclosure of a mechanic’s lien or breach of contract (and any other action joined by Contractor in such action), shall be submitted to arbitration in the location of the Property. Unless the Parties agree otherwise, the arbitration shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules. The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in any court having jurisdiction thereof. (c) The Parties waive all right to a trial by jury in any action relating to the Warranty, Construction Agreement or Property; this waiver is knowingly, willingly, and voluntarily given.

(4) Waiver and Disclaimer of Warranties; Materials and Equipment. For all appliances, equipment, materials, and other goods (collectively, “Materials”) provided by Contractor on the Project, and notwithstanding any terms to the contrary herein, all manufacturer warranties and other express and implied warranties provided by the vendor, manufacturer, and/or supplier (collectively, “Manufacturers”) of the Materials are hereby assigned from Contractor to Owner. Other than the foregoing assignment to Owner of warranties provided by the Manufacturers of the Materials, Contractor, itself, has no responsibility or liability for any defect in the Materials unless such defect was solely caused by the actions or inactions of Contractor, and, as such, Owner, as well as any owner of the Property and all subsequent owners of the Property, HEREBY WAIVE AND RELEASE CONTRACTOR FROM ANY AND ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES FOR MATERIALS, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF GOOD AND WORKMANLIKE CONSTRUCTION, IMPLIED WARRANTY OF MERCHANTABILITY, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

(5) Recoverability of Attorney’s Fees and Costs. The Parties agree that Contractor shall be entitled to recover from Owner all of its attorney’s fees and costs, including but not limited to all court costs and expert/consultant costs, resulting from (a) Owner’s breach of this Warranty or the Construction Agreement, (b) Contractor enforcing and/or defending its rights under this Warranty or the Construction Agreement regardless of whether any legal proceeding is commenced, or (c) Contractor being the prevailing party in defense of any suit, arbitration claim, or proceeding brought by Owner against Contractor arising from this Warranty, Construction Agreement, or the Property.

  1. Other Provisions.

(1) Voluntary Agreement, and No Rule Regarding Construction. Each Party acknowledges and agrees that it is represented by legal counsel and/or have had the opportunity to retain counsel; that it has entered into this Agreement knowingly and voluntarily after having been fully advised by its attorneys of its rights in this matter and of the scope and effect of this Agreement and/or after having had the opportunity to be fully advised; that all Parties played a substantive role in drafting this Agreement and/or had an equal opportunity to review and/or modify the provisions set forth in this Agreement. Accordingly, in the event of any misunderstanding, ambiguity, or dispute concerning this Agreement’s provisions, or interpretation, the Parties agree that no rule of construction shall be applied that would result in having this Agreement interpreted against any Party.

(2) No Third Party Beneficiaries. Nothing contained in this Agreement shall create a contractual relationship with, create a cause of action in favor of, or otherwise benefit, any third party. In particular, Contractor’s subcontractors, suppliers, and other independent contractors are not third-party beneficiaries under this Agreement. Instead, Contractor’s Work under this Agreement is being performed solely for the Owner’s benefit, and, therefore, no other entity shall have any claim against Contractor because of this Agreement.

(3) Miscellaneous Provisions: (a) This Agreement shall be governed and interpreted in accordance with Iowa law.  (b) Should any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect. (c) Owner, in executing this Agreement, did not and shall not rely upon any statement and/or information provided, directly or indirectly, verbally or in writing, by Contractor or any other party, except for the statements and information provided within this Agreement when fully executed. (d) This Agreement may not be assigned by either Party. (e) This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective legal representatives, heirs, successors, and assigns.