AGREEMENT FOR THE CONSTRUCTION OF A DWELLING HOUSE

Transcription

1 AGREEMENT FOR THE CONSTRUCTION OF A DWELLING HOUSE THIS AGREEMENT is made on the date set out at Item 1 of the Schedule hereto between KENCASA CONSTRUCTION & PROJECT MANAGEMENT LIMITED a company duly incorporated under the laws of Jamaica with registered offices situate at 7a Barbados Avenue, Kingston 5 in the parish of Saint Andrew (hereinafter referred to as ( the Contractor ) of the ONE PART and the person or persons described in Item 2 of the Schedule hereto (hereinafter referred to as the Owner ) of the SECOND PART. WHEREAS: I. Zuccherina Developments Limited (hereinafter referred to as the Registered Proprietor ) is the registered proprietor of lands purchased or to be purchased by the Owner (under an agreement executed or to be executed contemporaneously herewith) (hereinafter referred to as the Lot ) more particularly described and set out at Item 3 of the Schedule hereto. II. III. IV. The Registered proprietor through its lawful attorney Zuccherina Developments (Jamaica) Limited has appointed the Contractor to inter alia construct and erect upon the Lot and the adjoining lots dwelling houses by the execution of the Works (hereinafter defined). The Owner is desirous of having a dwelling house (hereinafter referred to as the Dwelling House ) constructed on the Lot. The Owner has requested the Contractor and the Contractor has agreed to construct the Dwelling House in the manner set out herein in accordance with the Plans and Specifications and upon the terms and conditions herein stated. NOW THIS AGREEMENT WITNESSETH as follows: 1. Interpretation In this Agreement the following terms shall have the following meanings: Contractor s financiers means the Contractor s financial institution providing construction and/or bridging financing for the Project, the Contractor s lenders or the Contractor s commercial bankers or those of the registered proprietor or of Zuccherina Developments (Jamaica) Limited or all of them or any combination of them; Construction of a Dwelling house/holland Estates/NP Page 1 of 23

2 the Dwelling House the Engineer the Mortgagee the Mortgage the Mortgaged Loan the Planner Plans and Specifications means the dwelling house of the size, shape and construction shown and set out in the Plans and Specifications erected or to be erected on the Lot described and set out at Item 3 of the Schedule; means the person or persons or either of them appointed by the Contractor in relation to the Project (including the Works) details of whom are available for inspection at the Contractor s site office at Holland Estates; means such Building Society or other financial institution as may be approved by the Contractor; means a first mortgage of the Premises securing the Mortgaged Loan; means the sum set out in Item 8 of the Schedule; means the person or persons appointed by the Contractor in relation to the Project (including the Works) details of whom are available for inspection at the Contractor s site office at Holland Estates; means the drawings, plans and documents determining and setting out the layout of the Project, the designs of the dwelling houses in the Project and the designs and details of the options available to the registered proprietors for the expansion or improvement of the Premises provided by Zuccherina Developments (Jamaica) Limited for the Project a set of which plans and specifications are available for inspection at the Contractor s site office at Holland Estates all of which the Owner acknowledges that he has seen and perused and the Owner confirms that he has not Construction of a Dwelling house/holland Estates/NP Page 2 of 23

3 relied on any representation or warranty save as expressly set out therein PROVIDED HOWEVER THAT with the consent or approval of the Engineer, Quantity Surveyor or Architect or at the direction of the relevant public or local authorities, the Contractor may make alterations or variations not affecting the size, shape, strength and soundness of construction of the said Dwelling House or substitute alternative building materials of similar quality if they are not available in Jamaica or only available at a substantially increased price; the Premises the Project the Quantity Surveyor or Architect Sub-contractor the Sub-division Plan the Works means the Lot together with the Dwelling House erected or to be erected thereon; means the development known as Holland Estates in the parish of Trelawny; means the Quantity Surveyor or Architect appointed by the Contractor in relation to the Project (including the Works) details of whom are available for inspection at the Contractor s site office at Holland Estates; means any party with whom the Contractor contracts for the execution of the whole or any part of the Works; means the Sub-division plan for the project deposited in the office of the Contractor available for inspection at the Contractor s site office at Holland Estates which the Owner acknowledges he has seen and perused; and means the Dwelling House together with such proportionate part of any related infrastructure and/or development work set out in the Plans and Specifications, executed Construction of a Dwelling house/holland Estates/NP Page 3 of 23

4 on or for the benefit of the Lot deemed necessary by the Contractor to render the Dwelling House habitable. 2. Execution of the Works 2.1 The Contractor shall execute and carry out the Works in accordance with the terms and conditions of this Agreement so that the Dwelling House shall be erected on the Lot. 2.2 The Owner hereby acknowledges that the Contractor may in its absolute discretion decide on the building system and method of construction of the Works and the timing and progress of construction thereof in relation to the Dwelling House, other dwelling houses and infrastructure and development works in the Project and that the Contractor shall be entitled to delay commencement of the construction of the Works without liability to the Owner for such delay. 2.3 The Owner shall give or ensure that the Contractor is granted vacant possession of the Lot immediately upon execution hereof for the purpose of carrying out the Works and for so long as this Agreement shall remain operative under the terms hereof, the Contractor, his principal, servants, and/or agents shall have the irrevocable right and be at liberty to enter upon the Lot at any time for the purposes of carrying out the Contractor s obligations under this Agreement. 3. Contract Price The amount which, after allowing for statutory deductions, levies or imposts payable on or in relation to the Works, will yield to the Contractor the sum mentioned in Item 4 of the Schedule hereto together with any increase thereto pursuant to clause (hereinafter referred to as the Contract Price ). 4. Owner s Covenants The Owner covenants with the Contractor to as follows: 4.1 On the execution hereof by the Owner to pay to the Contractor or as the Contractor shall direct the initial payment (being the deposit) mentioned in Item 5 of the Schedule hereto. 4.2 Where the Owner has indicated to the Contractor that he does not require mortgage financing, he shall on or before 90 days of the date of signing hereof upon the issue of a notice in writing by the Contractor make a further payment on account of the Contract Price in the amount set out in Item 6 of the Schedule hereto; Construction of a Dwelling house/holland Estates/NP Page 4 of 23

5 4.3 Upon the issue of a Certificate of Practical Completion pursuant to clause 5.4 to pay to the Contractor: The unpaid balance of the Contract Price mentioned in Item 9 of the Schedule hereto; and The Owner s one half share of Stamp Duty set out in Item 7 of the Schedule hereto; Any escalation payable pursuant to clause Where the Owner has indicated to the Contractor that he requires mortgage financing from a Building Society or other financial institution approved by the Contractor (hereinafter referred to as the Mortgagee ) the Owner shall: attend promptly at the offices of the Mortgagee or such other place as may be directed for the purposes of having an interview in connection with the Mortgage Loan and to provide such information as the Mortgagee may require and sign and have signed by the relevant persons such additional applications proposals and documents as may be required by the Mortgagee in support of the application for the Mortgage Loan; obtain an irrevocable letter of undertaking from the Mortgagee or the Mortgagee s attorneys-at-law in a form acceptable to the Contractor for the payment to the Contractor at or before the time mentioned at clause 4.3 of the remainder of the Contract Price or of the Reduced Mortgage Loan referred to in clause and costs payable by the Owner and present same to the Contractor on or before 45 days from the date of signing hereof as to which time shall be of the essence of the contract failing which the Contractor shall be entitled to cancel this Agreement without notice and refund the deposit without interest. 4.5 The Owner that does not require mortgage financing shall within 90 days of the date of this Agreement obtain and deliver to the Contractor a guarantee or undertaking from a Bank, or a financial institution acceptable both as to form and as to institution to the Developer guaranteeing or irrevocably undertaking to pay the balance of the Contract Price or any balance thereof, and other costs payable hereunder to the Contractor or to the Contractor s attorneys-at-law on the due date for payment whereupon this Agreement shall be completed as herein provided. 4.6 The Owner covenants as follows: [This Agreement continues on page 6] Construction of a Dwelling house/holland Estates/NP Page 5 of 23

6 4.6.1 not to enter upon any of the lands of the Project or the Lot without first having obtained the consent in writing of the Contractor or prior to possession being granted by the Contractor in pursuance hereof; not to make any alterations or modifications to the Works nor cause or permit any damage to same until all monies due to or payable to the Contractor under this Agreement have been paid in full; not to assign this Agreement or any rights hereunder. 5. Contractor s Covenants The Contractor hereby covenants with the Owner as follows: 5.1 Provided the Owner shall have fully and faithfully performed and fulfilled each and every obligation hereunder and provided the Owner shall have satisfied the Contractor of the arrangements to pay for the construction of the Dwelling House, that the Contractor will: carry out the Works within the time determined by the Delivery Schedule or as early as possible thereafter; deliver vacant possession and give to the Owner a Letter of Possession (as provided for by clause 6.4 hereof) upon the Owner honouring all and singular his obligations under this Agreement. 5.2 The Contractor shall give the Owner three (3) days notice of extension of the date of delivery of possession in the event that the construction of the Works or any part of the Project is delayed by reason of: fire, lightning, explosion, flood, windstorm, earthquake, riots, civil commotion, malicious damage, aircraft damage, Act of God or the Queens enemies, or force majeure, or inclement weather, or local combination of workmen, strike or lockout affecting any of the trades employed upon the Project or any of the goods or materials required for the Project, or a lockout or go slow by workmen which results in a reasonable apprehension that injury or damage is likely to be caused to the person or property of persons employed by the Contractor whether in a managerial capacity or not, or a national or regional building industry dispute acknowledged by the Incorporated Master Builders Association of Jamaica, or any act or default of any party contracted to undertake the Works or any part thereof as Sub-contractor or of any nominated sub-contractor or supplier Construction of a Dwelling house/holland Estates/NP Page 6 of 23

7 provided that the Contractor has taken all practical steps to avoid or prevent such act or default, or an act of default of artists, tradesmen or others engaged by the Owner in executing work not forming part of this Agreement, or the failure of the relevant authorities to provide the Lot and/or Project with a proper supply of water and electricity and a proper sewage disposal system and to take over such plant machinery wirings, cables and other equipment or buildings which such authority may be responsible for taking over, on completion of the Works or of the dwelling houses or a part thereof in the Project, or the Contractor s inability for reasons beyond its control and which it could not reasonably have foreseen at the date of this Agreement to secure such labour as is necessary for the proper carrying out of the construction of the Project, or the Contractor s inability for reasons beyond its control and which it could not reasonably have foreseen at the date of this Agreement to secure such goods and/or materials as are essential to the proper carrying out of the construction of the Project, or any town planning or building licensing or building regulations refusal or restrictions or any extension variation or alteration made to the Project, or any default of the Contractor s financiers in disbursing the interim financing required for the timely completion of the Works of which a letter indicating the delay in disbursement from the Contractor s financiers shall constitute sufficient evidence thereof, or any act cause matter or thing (whether similar to any of the foregoing or not) beyond the reasonable control of the Contractor. 5.3 The Certificate of the Quantity Surveyor extending the time within which to complete construction of the Works in accordance with the provisions above and stating that such delay was due to any of the reasons abovementioned shall be final and binding on the parties hereto and shall be conclusive evidence in any proceedings arising out of this Agreement that the delays were so due and for the period so certified. 5.4 Construction of the Works shall be completed when a Certificate of Practical Completion is issued by the Quantity Surveyor or the Architect certifying that there has been erected on and for the benefit of the Lot the Works (save and except minor defects in the Works). The issue of such Certificate shall be conclusive evidence that the Works have been duly and satisfactorily constructed Construction of a Dwelling house/holland Estates/NP Page 7 of 23

8 by the Contractor and that the Contractor has faithfully performed and satisfied his obligations hereunder. 5.5 The Contractor shall remedy and rectify minor defects in the Dwelling House in existence at the date of the issue of the Certificate referred to in Clause 5.4 which are specified by the Quantity Surveyor or Architect in the said Certificate and minor defects in the Dwelling House of which written notice is given by the Owner to the Contractor within the Defects Liability Period hereinafter defined PROVIDED THAT such notice is approved by the Quantity Surveyor or Architect. The Contractor shall not be required to rectify any defect or damage caused by the act or default of the Owner. A Certificate from the Quantity Surveyor or the Architect that all minor defects whether complained of or not have been made good shall be conclusive evidence in any proceedings arising out of this Agreement that all minor defects in the Dwelling House have been made good. 5.6 Notwithstanding anything to the contrary herein contained the Contractor shall be relieved from any liability of any nature whatsoever whether arising under this Agreement or by common law or statute in respect of the said Dwelling House unless structural defects due to materials or workmanship not in accordance with the Plans and Specifications hereof in walls, roofs or foundations which shall appear or arise within one hundred and eighty (180) days of the issue of the Certificate mentioned in clause 5.4 hereof ( Defects Liability Period ) and of which written notice thereof shall have been given by the Owner to the Contractor within such period shall within a reasonable time after receipt of the written notice on that behalf be made good by the Contractor and (unless the Quantity Surveyor or the Architect otherwise directs) at its own cost PROVIDED HOWEVER that on the Contractor obtaining a new Quantity Surveyor s or Architect s Certificate certifying that the defects complained of have been made good as aforesaid such Certificate shall be final and binding on the parties hereto and all liability of the Contractor hereunder in respect thereto shall henceforth cease and determine. 6. Mutual Agreements It is hereby mutually agreed by and between the Contractor and the Owner as follows: 6.1 The Owner shall contemporaneously herewith enter into an Agreement for the Nomination of a Lot with the Registered Proprietor and Zuccherina Developments (Jamaica) Limited. It is a condition of this Agreement that the Owner shall have fulfilled all his obligations under the Agreement for the Nomination of a Lot on or Construction of a Dwelling house/holland Estates/NP Page 8 of 23

9 before completion of this Agreement takes place and if Zuccherina Developments (Jamaica) Limited cancels or rescinds the Agreement for the Nomination of a Lot for any reason whatsoever then this Agreement shall be automatically cancelled and be of no further effect and vice versa. 6.2 In the event that the Owner shall deliver to the Contractor within the timeframe set out therein any one of the items set out in clause 6.3.1, 6.3.2, or herein this Agreement shall be completed as herein provided. 6.3 In the event that the Owner shall fail to deliver to the Contractor: within 90 days of the date of this Agreement the guarantee or irrevocable undertaking referred to in clause 4.5; or within 30 days of the date of this Agreement a letter of commitment from the Mortgagee for the Mortgage Loan on terms and conditions acceptable to the Contractor; or within 30 days of the date of this Agreement a letter of commitment from the Mortgagee for a lesser sum than the Mortgage Loan (which lesser sum is herein referred to as the Reduced Mortgage Loan ) on terms and conditions acceptable to the Contractor and a further instalment of the Contract Price equal to the difference between the Reduced Mortgage Loan and the aggregate of the Contract Price payable at the time mentioned in clause 4.3; or within 45 days of the date of this Agreement the guarantee or irrevocable undertaking referred to in clause 4.4.2; then this Agreement shall be void and of no effect and the Contractor shall refund to the Owner without interest all sums paid to the Contractor The Mortgage or a mortgage to secure the Reduced Mortgage Loan (as the case may be) shall be in accordance with the usual or standard form thereof used by the Mortgagee. 6.4 For the purpose of this Agreement possession shall be deemed to be delivered to the Owner by the Contractor giving to the Owner a letter authorising the Owner to take possession of the Dwelling House and the date of delivery and possession shall be deemed to be the date named in the said letter as the date on which the Owner is authorised so to take possession PROVIDED HOWEVER that the Contractor shall not be bound to give nor the Owner to take possession of the Dwelling House nor shall possession be deemed to have been delivered unless and until the Contractor shall have obtained from the Quantity Surveyor or Architect a Certificate that there has been erected on the Lot a dwelling house of Construction of a Dwelling house/holland Estates/NP Page 9 of 23

10 the type, size, shape and construction provided for in clause 2.1 hereof, and upon the Contractor obtaining the Certificate of Practical Completion referred to in clause 5.4 the Contractor shall be deemed for the purpose of this Agreement fully and faithfully to have performed and satisfied the covenant contained in clause to construct the Dwelling House (save and except for minor defects) and without prejudice to clause 5.6 herein all liability of the Contractor hereunder whether express or implied shall thenceforth cease and determine. 6.5 For the purpose of this Agreement time shall be of the essence of the contract and on the failure of the Owner on the due date to pay any sum or sums payable hereunder or punctually to do any act or thing by this Agreement required to be done by him, the Contractor shall be entitled immediately to cancel this Agreement by notice in writing to the Owner PROVIDED HOWEVER that the Contractor shall be entitled at its option to allow the Owner time to satisfy his various obligations under this Agreement and this shall not be deemed to be a waiver by the Contractor of its rights under this clause 6.5 AND PROVIDED FURTHER that in any event of non-payment the Contractor shall be entitled to charge interest on any sum or sums unpaid at the highest rate of interest or overdraft rate payable by the Contractor to the Contractor s financiers or in the event that the Contractor does not have loan financing at the rate of seven (7%) whichever rate shall be applicable for the phase of the Project of which the Lot forms a part from the date or the several dates on which the sum or sums shall become payable to the dates or several dates of payment thereof as to which a certificate from such financial institution shall be conclusive. 6.6 It is hereby agreed between the Owner and the Contractor that in the event of the Contractor delivering possession of the Dwelling House to the Owner as hereinbefore provided but before such time as the Contractor shall have been paid pursuant to clause 4.3 hereof then the Owner shall pay to the Contractor interest at one (1%) per cent above the rate of interest or overdraft rate payable by the Contractor from time to time to the Contractor s financiers whichever rate shall be applicable for the phase of the Project of which the Lot forms a part or in the event that the Contractor is not at that time borrowing funds at the rate of seven (7%) per cent per annum on the unpaid balance of the Contract Price from the date of possession until the date that the Contractor receives payment as to which rate of interest where applicable, a certificate from such financial institution shall be conclusive. [This Agreement continues on page 11] Construction of a Dwelling house/holland Estates/NP Page 10 of 23

11 6.7 Any payments received by the Contractor from the Owner shall be applied first to any interest then due and thereafter to the balance Contract Price. 6.8 All payments to be made pursuant to this Agreement shall be made by telegraphic transfer to a bank account nominated by the contractor or by manager s cheque and (save where otherwise specifically stated) be taken to be exclusive of General Consumption Tax chargeable in respect of the matters giving rise to such payments and shall be added to the amount thereof and paid in addition thereto by the party making the payment. 6.9 Until the Owner pays all moneys due to the Contractor under this Agreement, the Owner hereby irrevocably appoints the Contractor as his agent and Attorney to demand and receive from the Registered Proprietor of the Lot a registrable transfer duly executed by the Registered Proprietor in favour of the Owner together with the duplicate certificate of title for the Lot to be held and retained by the Contractor as security for the payment by the Owner of all monies due by the Owner under this Agreement and for better securing to the Contractor the payment by the Owner of all monies due by the Owner together with interest thereon under this Agreement and the Nomination Agreement the Owner hereby mortgages all his estate and interest and all the estate and interest which he is entitled to transfer and dispose of in the Lot to the Contractor, this mortgage to be construed as a mortgage under the Registration of Titles Act payable on demand and on breach by the Owner of any of the terms of this Agreement the Contractor shall be entitled to immediately exercise the power of sale and all ancillary powers conferred on mortgagees by the Registration of Titles Act without notice to or demand on or consent by the Owner in respect of the Lot Termination of this Agreement by the Contractor for breach of any provision hereof by the Owner shall entitle him to retain all monies received by it under this Agreement and to recover damages from the Owner for breach of this Agreement. For the avoidance of doubt it is hereby declared that the Owner s defaults specified in clauses 4.5 and hereof are not breaches of this Agreement Changes in the Contract Price The Contract Price in this clause 6.11 referred to as the Original Contract Price ) shall be subject to variation or escalation of the Original Contract Price at any time after the signing of this Agreement if the cost of the Works and the development charges incidental thereto is increased to the Contractor after the aforesaid date as a result of: Construction of a Dwelling house/holland Estates/NP Page 11 of 23

12 variations (approved by the Engineer, the Quantity Surveyor or the Architect) in the Plans and Specifications and which result in extra work or materials or equipment ; or changes in the price of raw, consumable or other materials, plant, machinery or equipment, spare parts, electricity, telephone or other costs or charges for services or items used in connection with or on the Project hereto above the market process or rates prevailing on September 18, 2010; or changes in wages or related labour payments or benefits effective February 1, 2010 to January 31, 2011 approved by the Joint Industrial Council for the Construction Industry or taxes, duties or other levies which affect the cost of construction of the Project after September 18, 2010; or changes in the Contractors or subcontractors on site and/or off site cost of overheads in respect of the Project after September 18, 2010; or devaluation, fluctuation or changes in the value of the Jamaican dollar against the currency in which the loan financing of the Project is denominated or which is utilised to purchase materials or equipment after and/or variations in the rate of interest at which the Contractor obtains its financing for the Project September 18, 2010; or or changes to the cost to the Contractor as a result of an extension of time granted to the Contractor on the approval of the Quantity Surveyor; or a need on the part of the Contractor that he could not reasonably have anticipated, to erect retaining walls in any part of the Sub-division In the event of any changes to the Contractor in the cost of construction of the Works as a result of any change in relation to any of the matters set out in clauses to , the Original Contract Price shall be changed to cover the cost of the construction of the Works to the Contractor as a result of the said changes Any such change as aforesaid shall form an addition to the Original Contract Price. A certificate from the Quantity Surveyor or the Architect as to the amount of such increase or decrease in the Original Contract Price payable by the Owner shall be final and conclusive and binding on the parties hereto At reasonable intervals during the course of the construction of the Works the Contractor shall be entitled to serve upon the Owner an Estimated Escalation Certificate (issued by the Quantity Surveyor or the Architect) certifying the estimated increase in the Original Contract Price. The Owner shall within Construction of a Dwelling house/holland Estates/NP Page 12 of 23

13 seven (7) days of the date of issue of the certificate of the Quantity Surveyor or the Architect deliver to the Contractor: a letter of commitment from the Mortgagee for the increased amount; or a guarantee or irrevocable undertaking from a Building Society, or financial institution (acceptable both as to form and as to institution to the Contractor) guaranteeing or irrevocably undertaking to pay the increased amount; or a manager s cheque in the increased amount failing which this Agreement shall be void and of no effect and the Contractor shall refund to the Owner without interest all sums paid to the Contractor On completion of construction of the Works the Quantity Surveyor shall issue to the Owner a Final Certificate of Escalation certifying the actual increase in the Original Contract Price and in the event that the actual increase in the Original Contract Price exceeds the estimated increases in the Original Contract Price paid by the Owner pursuant to clause then such excess shall be due and payable by the Owner within seven (7) days of written demand for same by the Contractor Completion of construction The Contractor shall be entitled to serve upon the Owner a notice of his intention to complete the construction of the Dwelling House (hereinafter referred to as the Notice of Intention to Complete Construction ) on the date specified in the said notice (hereinafter referred to as the Date for Completion of Construction ) which date shall not be less than seven (7) days from the date of the said notice In the event that the said Dwelling House is completed (as defined in clause 5.4) on or before the Date for Completion of Construction the Owner shall pay to the Contractor interest on the amounts payable under clause 4.3 commencing seven (7) days from the Date for Completion of Construction until payment of the said amounts at the highest rate of interest or the overdraft rate payable by the Contractor to the Contractor s financiers or in the event that the Contractor does not have loan financing at the rate of seven (7%) per annum at the Date for Completion of Construction whichever rate shall be applicable for the phase of the Project of which the Lot forms a part and shall apply in the circumstances In the event that completion of construction of the Dwelling House (as defined in clause 5.4) shall not have taken place on the Date for Completion of Construction the Contractor shall upon completion of construction of the Construction of a Dwelling house/holland Estates/NP Page 13 of 23

14 Dwelling House serve upon the Owner written notice of such completion (hereinafter referred to as Notice of Actual Completion ) In the event that the amounts payable under clause 4.3 herein are not paid at the expiration of seven (7) days from the date of the Notice of Actual Completion of Construction the Owner shall pay to the Contractor interest on the amounts payable under clause 4.3 from the expiration of the said period of seven (7) days until payment of the said amounts at the highest rate of interest or the overdraft rate payable by the Contractor to the Contractor s financiers at the date of the Notice of Actual Completion of Construction whichever rate shall be applicable for the phase of the Project of which the Lot forms a part or if the Contractor shall not be borrowing at the rate of seven (7%) per cent per annum whichever rate shall apply in the circumstances Possession Subject to clause herein the Contractor shall make available to the Owner the keys for the Dwelling House on the Date for Completion of Construction and the Owner shall be deemed to have taken possession of the Dwelling House on the Date for Completion of Construction In the event that the construction of the Dwelling House shall not have been completed as defined in clause 5.4 on the Date for Completion of Construction, the Owner shall be deemed to have taken possession of the Dwelling House at the expiration of seven (7) days from the date of the Notice of Actual Completion or upon the Owner actually taking possession whichever is earlier The Dwelling House shall be at the sole risk of the Owner from the time he takes possession or is deemed to have taken possession thereof whichever is the earlier and the Contractor shall not be liable to him save as specifically provided in clauses 5.5 and 5.6 for any loss suffered by him in respect of the Dwelling House Notwithstanding the fact that the Owner is deemed to have taken possession of the Dwelling House the Owner shall not be entitled to physically enter and take physical possession of the Dwelling House without the consent in writing of the Contractor and the Contractor shall not be under any obligation to the Owner to make available the keys therefor unless and until the Owner shall have paid the amounts payable under clause 4.3 and the interest due pursuant to clause 6.5 and all other sums due and payable by the Owner pursuant to the provisions hereof. [This Agreement continues on page 15] Construction of a Dwelling house/holland Estates/NP Page 14 of 23

15 6.14 The Owner shall be liable for all taxes, water rates and outgoings in respect of the Dwelling House from the date the Owner takes possession or is deemed to have taken possession thereof under clause or clause whichever is earlier and shall indemnify the Contractor in respect of any payments made by it for any period after the Owner is deemed to have taken possession thereof and from after such date unless and until separate assessments of the said outgoings are made in respect of the Premises by the relevant authorities the Owner shall be liable for that portion of any such outgoings assessed against the Project as a whole which the area of the Lot bears to the total area of residential and commercial lots in the Project to which the assessment relates The Plans and Specifications shall be and remain the property of the Zuccherina Developments (Jamaica) Limited The Contractor shall not at any time be liable to the Owner for any part of the cost of any fence or hedgerow dividing the Lot from other lands in the Project The costs of stamping of this Agreement shall be borne equally by the Contractor and the Owner In the event of there being any increase in the stamp duty as set out in the Schedule hereto the Owner shall pay the amount of such increase within seven (7) days of written demand for same to the Contractor This Agreement shall be of no force or effect until it is signed by all the parties The Owner shall be given a true copy of this Agreement of which he acknowledges receipt by the execution hereof The Contractor may assign this Agreement on such terms as it may think fit PROVIDED THAT it shall remain liable to the Owner for its obligations herein contained Any notice required by this Agreement or by law to be given or served upon any of the parties hereto shall be in writing and shall be deemed to be sufficiently given and effectually served: upon the Owner if addressed to him at his address hereinbefore contained or his last known address in Jamaica or his Attorney-at-law (if any) at the address stated herein; Construction of a Dwelling house/holland Estates/NP Page 15 of 23

16 upon the Contractor or the Registered Proprietor if addressed to either of them at the address above given for the Contractor or at such other address as the Owner may be advised of by notice in writing and posted by prepaid registered post in any post office in Jamaica. A notice shall be deemed to be given or served five (5) days after the time of posting. This mode of service shall be in addition to any other mode of service available In the construction of this Agreement the word Owner shall where the context so admits be deemed to include his, her or its personal representatives, successors and assigns and the words he, him or his indicating the masculine gender and singular number shall, where the context so admits, be deemed to refer to and include the feminine and neuter genders and the plural number. Where there is more than one Owner, all the obligations of the Owner hereunder shall be joint and several and references to the Engineer, the Contractor, the Quantity Surveyor and to the Architect shall be deemed to include references to the representatives of such Engineer, Contractor, Quantity Surveyor or Architect The Contractor s attorneys-at-law and those having carriage of sale shall be Nicholson Phillips, Attorneys-at-Law of 22 Trafalgar Road, Kingston 10, St. Andrew. Tel: (876) Fax (876) , Electronic Mail: info@nicholsonphillips.com If any dispute or difference of any nature between the parties shall arise pursuant to this Agreement then such dispute or difference shall: at first be referred to a single mediator to be appointed in accordance with the mediation procedures of the Dispute Resolution Foundation or such other organization which provides mediation services. The mediator shall be agreed upon by the parties but failing such agreement within fifteen (15) days of one party requesting the appointment of a mediator the mediator shall be appointed by the President of the Jamaica Bar Association at that time; or if not resolved by the procedure in clause then either party shall be at liberty to pursue such action and remedies as it shall at its sole discretion decide This Agreement sets out the terms agreed in their entirety between the parties hereto and supersedes and operates to the exclusion of all previous arrangements, undertakings and/or representations made by and/or on behalf of the Contractor (whether in writing or not). Any amendments, additions or alterations to this Construction of a Dwelling house/holland Estates/NP Page 16 of 23

17 Agreement shall not be made except in writing and signed by or on behalf of all the parties. [This Agreement continues on page 18] Construction of a Dwelling house/holland Estates/NP Page 17 of 23

18 THE SCHEDULE Item 1 The date: The day of 201 Item 2 The Owner: 1. Name: Address: Occupation: TRN: Place of business: Telephone numbers: Home: Office: Cell: 2. Name: Address: Occupation: TRN: Telephone numbers: Home: Office: Cell: AND/OR NOMINEE If title is to be issued in favour of more than one person, state whether such persons are to be Joint Tenants or Tenants in Common. Joint Tenants/Tenants in Common (delete which is not appropriate) Item 3 Dwelling House: [ ] bedroom dwelling house Lot #: Construction of a Dwelling house/holland Estates/NP Page 18 of 23

19 Description of the Lot: ALL THAT parcel of land part of THE HOLLAND ESTATE AND THE IRVING TOWER ESTATE in the parish of TRELAWNY being the Lot numbered TWO on the plan of part of The Holland Estate and the Irving Tower Estate deposited in the Office of Titles on the 24 th day of February 2009 and being PART OF the land comprised in Certificate of Title registered at Volume 1428 Folio 871 of the Register Book of Titles. Item 4 Contract Price: J$ Item 5 Deposit: J$ Item 6 Further payment: Item 7 Owner s one half share of Stamp Duty: J$ Item 8 The Mortgaged Loan: J$ 45% of the Contract Price J$ Item 9 Balance of Contract Price: J$ Item 10 Owner s Attorney-at-Law (if applicable): [This Agreement continues on page 20] Construction of a Dwelling house/holland Estates/NP Page 19 of 23

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21 IN WITNESS WHEREOF this Agreement is executed by the parties on the day and date hereinbefore mentioned. EXECUTED by KENCASA CONSTRUCTION) & PROJECT MANAGEMENT LIMITED ) by KIRK KENNEDY ) Director ) in the presence of ) [This Agreement continues on page 22] Construction of a Dwelling house/holland Estates/NP Page 21 of 23

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23 SIGNED by the Owner ) in the presence of ) SIGNED by the Owner ) in the presence of ) SIGNED by the Owner ) in the presence of ) Construction of a Dwelling house/holland Estates/NP Page 23 of 23