CONSTRUCTION AGREEMENT
I. The Parties. This Construction Agreement (“Agreement”) made on 20th July, 2023 is between KIM
AND EMMA with a mailing address of 27-30507, LUANDA (“Client”) and OJASSO PRO BUILDERS
LIMITED with a mailing address of 45244-00100, NAIROBI (“Contractor”) both of whom agree as
follows:
II. Services Provided. Contractor agrees to complete the following: THE PROPOSED RESIDENTIAL
DEVELOPMENT THAT INCLUDE:
1. All builder’s works i.e substructures, reinforced concrete superstructure, walling, roofing, doors,
windows and finishes to the structure.
2. All electrical conduits installation to lighting points and tapping points
3. All mechanical service points installation
III. Contractor Responsibilities. Contractor shall be responsible for providing the following when
performing their Services: (choose all that apply)
☐ - Labor – Including, but not limited to, employees, subcontractors and any other individuals or
agents.
☐ - Materials – Including, but not limited to, all supplies and products.
☐ - Equipment – Including, but not limited to, machinery, accessories, or devices.
☐ - Transport – Including, but not limited to, ensuring that the above-mentioned Responsibilities
are provided at the Location mentioned in Section V.
IV. Location. The primary location for the Services completed by the Contractor shall be: (choose one)
☐ KAKAMEGA COUNTY –At ……………………………………………….. (“Location”).
V. Commencement Date. The Contractor shall be permitted to begin the Services on 25TH JULY, 2023
(“Commencement Date”).
VI. Completion. The Contractor will be required, unless otherwise stated under the terms of this
Agreement, to complete the Services: (choose one)
☐ - By the Specific date of 30TH SEPTEMBER 2023.
☐ - In accordance with industry standards.
☐ - Other: ________________________________________________________
VII. Payment Amount. Payment for the Services shall be as follows: (choose one)
☐ - Ksh ……………………………………./- (Kenya Shillings
…………………………………………………………………………………………………………………
………………………………………………………………………………………only) for the Services
(“Payment”).
☐ - At an hourly rate of ____ per hour (“Payment”).
☐ - Other. ______________________________________________ (“Payment”)
If the Contractor asserts a claim which involves, in whole or in part, acts or omissions which are the
responsibility of the Client or another person for whom a claim may be submitted, including but not
limited to, claims for failure to pay, an extension of time, impacts, delay damages, or extra work, the
Contractor shall present the claim to the Client or other responsible party provided there is competent
supporting evidence and in sufficient time for the Client to do so. The Client shall cooperate fully with the
Contractor in any and all steps the Contractor takes in connection with prosecuting such a claim and
shall hold harmless and reimburse the Contractor for all expenses, including legal expenses, incurred by
the Contractor which arise out of the Contractor's submission of the claims to the Client or other
responsible party(ies). The Contractor shall be bound by any adjudication or award in any action or
proceeding resolving such a claim.
VIII. Payment Method. Payment shall be made by the Client to the Contractor as follows: (choose one)
☐ - Immediately upon completion of the Services to the satisfaction of the Contractor.
☐ - Within ____ business days after completion of the Services to the satisfaction of the
Contractor.
☐ - Shall be paid on a ☐ weekly ☐ monthly ☐ quarterly ☐ other ______________________
basis. If the Contractor completes the Services to the satisfaction of the Client, before the full
amount or balance has been fully paid, any remaining amount shall be payable immediately.
☐ - Other: ________________________________________________________
Satisfaction of the completed Services by the Client shall be completed within a reasonable time period.
“Satisfaction” shall be a determination, in good faith, made by the Client and in accordance with
commonly accepted industry standards.
IX. Subcontracting. The Contractor shall have: (choose one)
☐ - Right to Subcontracting: Contractor may subcontract, either part or in whole, the
Services authorized under this Agreement. The contractor shall be required to obtain a
written agreement from each subcontractor that is the same or comparable to the following
Sections of this Agreement and to be approved, in writing, by the Client.
☐ - No Right to Subcontracting: Subcontractor may not subcontract, either part or in whole,
the Services authorized under this Agreement.
X. Assignment. Contractor ☐ shall ☐ shall not have the right to assign any rights under this
Agreement or any part of the Services issued herein. Subject to the foregoing, this Agreement shall be
binding upon the parties’ heirs, executors, successors and assigns.
XI. Insurance. The Client ☐ shall ☐ shall not require the Contractor, along with each of its
subcontractors, to have insurance set forth in this Section under the following terms and conditions
before commencing Services:
A.) Coverage Types: (choose all that apply)
☐ - General Liability Insurance: Subcontractor shall carry minimum primary General
Liability Insurance for the following amounts:
a.) Ksh. Combined Single Limit: Bodily Injury + Property Damage;
b.) Ksh ___________________ Personal Liability Injury;
c.) Ksh ___________________ Aggregate for Products-Completed Operations; and
d.) Ksh ___________________ General Aggregate (This shall apply separately to the
Services provided by the Subcontractor).
XII. Resolution of Disputes. If a dispute arises concerning the provisions of this Agreement or the
performance of any of the parties mentioned, the parties hereby agree to settle the dispute by equally
paying for one of the following: (choose one)
☐ - Binding Arbitration as regulated under the laws in the State where the Services are being
performed. The parties agree to accept the final decision made by the Arbitrator.
☐ - Non-Binding Arbitration as regulated under the laws in the State where the Services are
being performed. The parties have the right to not accept the decision of the arbitrator; in such
event, the dispute shall be solved by litigation.
☐ - Mediation as regulated under the laws in the State where the Services are being performed.
The parties agree to enter into negotiations, in good faith, and through a neutral mediator in an
attempted to resolve the dispute. If a resolution to the dispute cannot be made by mediation, the
parties agree to enter into ☐ binding arbitration ☐ litigation.
If the parties have a dispute, regardless of which of the above are checked, the Contractor may, before,
during, or after any arbitration or mediation, take any steps required by law to preserve or secure any
lien on the property to enforce payment of monies due. Specifically, the Contractor may record one or
more lien certificates in the appropriate Registry of Deeds and may commence legal action to enforce
and preserve any lien as provided under State law.
Completion, as determined under this Section, may be changed if the Services cannot begin or end due
to circumstances beyond the control of the Contractor, including but not limited to, lack of readiness of
the Location, unavailability of building materials, or any other issues considered outside the control of the
parties in this Agreement.
XIII. Termination. During the course of this Agreement: (choose one)
☐ - No Rights to Terminate: No party has the right to terminate this Agreement unless mutually
agreed upon in writing by the Client and Contractor.
☐ - Contractor ONLY Has the Option to Terminate: Contractor may, at any time and for any
reason, terminate Subcontractor’s Services hereunder at the Contractor’s convenience with at
least ____ business day(s) notice. In the event of termination for convenience, Subcontractor
shall recover only the actual cost of work completed to the date of termination, in approved units
of work or percentage of completion, plus ____% of the actual cost of the completed work for
overhead and profit.
☐ - Subcontractor ONLY Has the Option to Terminate: Subcontractor may, at any time and
for any reason, terminate their Services hereunder at the Subcontractor’s convenience with at
least ____ business day(s) written notice to the Contractor. In the event of termination for
convenience, Subcontractor shall recover only the actual cost of work completed to the date of
termination, in approved units of work or percentage of completion. In such termination,
Subcontractor shall not be entitled to any claim or lien against the Contractor, Owner or anyone
else for any additional compensation or damages.
☐ - Both Parties Have the Option to Terminate: Contractor or Subcontractor may, at any time
and for any reason, terminate this Agreement for convenience with at least ____ business day(s)
notice. In the event of termination for convenience, Subcontractor shall recover only the actual
cost of work completed to the date of termination in approved units of work or percentage of
completion.
XIV. Claims. If any claim is made by the Contractor or Subcontractor in connection with a Change Order
or regarding any related issue with this Agreement or the performance of Services and/or Services to be
provided, either party shall have the right to submit written notice of such claim through certified mail with
return receipt. After receipt of a written claim by either party of this Agreement, the parties shall have 7
business day(s) to correct the claim prior to seeking a resolution under the instructions in Section XIII.
XV. Change Orders. Any alteration or deviation from the Services mentioned or any other contractual
specifications that result in a revision of this Agreement shall be executed and attached to this
Agreement as a change order (“Change Order”).
XVI. Entire Agreement. This Agreement represents the entire agreement between the Contractor and
Subcontractor. This Agreement supersedes any prior written or oral representations. Subcontractor and
its subcontractors, suppliers and/or materialmen are bound to the Contractor by the prime contract and
any contract documents incorporated therein to the same extent as Contractor is bound to the Client
insofar as they related in any way, directly or indirectly, to the Services provided and covered in this
Agreement.
XVII. Time. Time is of the essence of this Agreement. Subcontractor shall provide the Contractor with
scheduling information in a form acceptable to the Contractor and shall conform to the Contractor's
progress schedules, including any changes made by the Contractor in the scheduling of Services.
Subcontractor shall coordinate its Services with that of all other contractors, subcontractors, suppliers
and/or materialmen so as not to delay or damage their performance.
XVIII. Delays. Should the Subcontractor delay the Contractor, or any other contractors, subcontractors,
suppliers and/or materialmen on the entire project, Subcontractor will indemnify the Contractor and hold
Contractor harmless for any damages, claims, demands, liens, stop notices, lawsuits, attorneys' fees,
and other costs or liabilities imposed on the Contractor connected with said delay. Among other
remedies for Subcontractor's delay, the Contractor may supplement the Subcontractor's work and
deduct associated costs at Contractor's election.
XIX. Inspection of Services. Subcontractor shall make the Services accessible at all reasonable times
for inspection by the Contractor. Subcontractor shall, at the first opportunity, inspect all material and
equipment delivered to the job site by others to be used or incorporated in the Subcontractor’s Services
and give prompt notice of any defect therein. Subcontractor assumes full responsibility to protect the
work done hereunder until final acceptance by the Contractor or any authorized third (3rd) party.
XXI. Labor Relations. Subcontractor shall maintain labor policies in conformity with the directions of the
Contractor and under State laws.
XXII. Indemnification. To the fullest extent permitted by law, Subcontractor shall defend, indemnify and
hold harmless the Client and Contractor along with any of their agents, employees, or individuals
associated with their organization from claims, demands, causes of actions and liabilities of any kind and
nature whatsoever arising out of or in connection with the Subcontractor’s Services or operations
performed under this Agreement and causes or alleged to be caused, in whole or in part, by any act or
omission of the Subcontractor or anyone employed directly or indirectly by Subcontractor or on
Subcontractor's account related to Subcontractor's Services hereunder. This indemnification shall extend
to claims occurring after this Agreement is terminated as well as while it is in force. The indemnity shall
apply regardless of any passively negligent act or omission of the Client or Contractor, or their agents or
employees, but Subcontractor shall not be obligated to indemnify any party for claims arising from the
active negligence, sole negligence, or willful misconduct of Client or Contractor or their agents or
employees or arising solely by the designs provided by such parties. To the extent that State law limits
the defense or indemnity obligations of the Subcontractor either to Contractor or Client, the intent
hereunder is to provide the maximum defense and indemnity obligations allowed by the Subcontractor
under the law. The indemnity set forth in this Section shall not be limited by any insurance requirement
or any other provision of this Agreement.
XXIII. Warranty. Subcontractor warrants to Client and Contractor that any and all materials and
equipment furnished shall be new unless otherwise specified and that all Services provided under this
Agreement will be performed, at a minimum, in accordance with industry standards. All work not
conforming to these requirements, including substitutions not properly approved and authorized, may be
considered defective. The warranty provided in this Section shall be in addition to and not in limitation of
any other warranty or remedy required by law or by the Prime Contract.
XXIV. Required Licenses. All parties of this Agreement, including but not limited to, Contractor,
Subcontractor, other sub-contractors, and all parties' direct or indirect employees and agents shall be
licensed in accordance with respective State laws where the individual is performing their trade or
service. All individuals under this agreement shall be regulated by their respective licensing board which
has jurisdiction to investigate complaints made by any third (3rd) parties.
XXV. Confidentiality. For the purposes of this Agreement, “Confidential Information” shall mean any
information or material that is proprietary to a party or designated as confidential by such party
(“Disclosing Party”) and received by another party (“Receiving Party”) as a result of this Agreement.
Confidential Information may be considered any information that is conceived, originated, discovered or
developed in whole or in part by the Subcontractor in accordance with providing their Services.
Confidential Information does not include (1) information that is or becomes publicly known without
restriction and without breach of this Agreement or that is employed by the trade at or after the time the
Receiving Party first learns of such information; (2) generic information or knowledge which the
Receiving Party would have learned in the course of similar employment or work elsewhere in the trade;
(3) information the Receiving Party lawfully receives from a third (3rd) party without restriction of
disclosure and without breach of a nondisclosure obligation; (4) information the Receiving Party rightfully
knew prior to receiving such information from the Disclosing Party to the extent such knowledge was not
subject to restrictions of further disclosure; or (5) information the Receiving Party develops independent
of any information originating from the Disclosing Party.
A.) Prime Confidential Information. The following shall constitute Confidential Information of
the Contractor and should not be disclosed to third (3rd) parties: the deliverables, discoveries,
ideas, concepts, software [in various stages of development], designs, drawings,
specifications, techniques, models, data, source code, source files, object code,
documentation, diagrams, flow charts, research, development, processes, procedures,
“know-how”, marketing techniques and materials, marketing and development plans,
customer names and other information related to customers, price lists, pricing policies and
financial information, this Agreement and the existence of this Agreement, the relationship
between the Contractor and Subcontractor, and any details of the Service under this
Agreement. Subcontractor agrees not to use or reference the Contractor and/or their names,
likenesses, or logos (“Identity”). Subcontractor will not use or reference Contractor or their
Identity, directly or indirectly, in conjunction with any other third (3rd) parties.
B.) Non-Disclosure. The parties hereby agree that during the term hereof, and at all times
thereafter, and except as specifically permitted herein or in a separate writing signed by the
Disclosing Party, the Receiving Party shall not use, commercialize or disclose Confidential
Information to any person or entity. Upon termination, or at any time upon the request of the
Disclosing Party, the Receiving Party shall return to the Disclosing Party all Confidential
Information, including all notes, data, reference materials, sketches, drawings,
memorandums, documentation and records which in any way incorporate Confidential
Information.
C.) Right to Disclose. With respect to any information, knowledge, or data disclosed to the
Contractor by the Subcontractor, the Subcontractor warrants that the Subcontractor has full
and unrestricted right to disclose the same without incurring legal liability to others, and that
the Contractor shall have the full and unrestricted rights to use and publish the same as it
may see fit. Any restrictions on Contractor’s use of information, knowledge, or data disclosed
by Subcontractor must be made known to Contractor.
XXVI. Notices. All notices under this Agreement shall be in writing and sent to the address of the
recipient specified herein. Any such notice may be delivered by hand, by overnight courier, certified mail
with return receipt, or first class pre-paid letter, and will be deemed to have been received (1) if delivered
by hand – at the time of delivery; (2) if delivered by overnight courier – 24 hours after the date of delivery
to courier with evidence from the courier; (3) if delivered by certified mail with return receipt – the date as
verified on the return receipt; (4) if delivered by first class mail – three (3) business days after the date of
mailing.
XXVII. Injunctive Relief. Subcontractor acknowledges it would be difficult to fully compensate the Client
and/or Contractor for damages resulting from any breach of this Agreement. Accordingly, in the event of
any breach of this Agreement, the Client and/or Contractor shall be entitled to temporary and/or
permanent injunctive relief to enforce such provisions.
XXVIII. Severability. If any term, covenant, condition, or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain
in full force and effect and shall in no way be affected, impaired, or invalidated.
XXIX. Independent Contractor. No term, covenant, condition, or provision of this Agreement shall be
considered to create an employer and employee relationship, a master-servant relationship, or a
principal and agent relationship between Subcontractor and/or any of the Subcontractor's employees
and the Contractor or Client. All parties to this Agreement attest that the relationship between the
Contractor and Subcontractor shall be recognized as the Subcontractor acting as an independent
contractor.
XXX. Force Majeure. Neither party shall be liable for any failure to perform under this Agreement when
such failure is due to causes beyond that party’s reasonable control, including, but not limited to, acts of
State or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes,
accident, and prolonged shortage of energy. In the event of such delay, any date stated herein shall be
extended by a period of time necessary by both Contractor and Subcontractor. If the delay remains in
effect for a period more than thirty (30) days, Contractor has the right to terminate this Agreement upon
written notice to the Subcontractor.
XXXI. Governing Law. This Agreement shall be governed under the laws in the State of KENYA
XXXII. Attachments. The Contractor may attach any plans, schematics, drawings, details, or other
information to assist the Subcontractor with the aforementioned Services. Any attachment made shall be
made part of this entire Agreement.
XXXIII. Additional Provisions. ____________________________________________
______________________________________________________________________
______________________________________________________________________
IN WITNESS WHEREOF, this Agreement was signed by the parties under the hands of their duly
authorized officers and made effective as of the undersigned date.
Contractor’s Signature Date 5TH SEPTEMBER, 2022
Print Name STELLAMARIS NDUKU NZOVE
Company Name CITILINK SOLUTIONS LIMITED
Subcontractor’s Signature __________________________ Date ________________
Print Name ____________________________
Company Name ____________________________
