BIRCH COMPANY, LLC v. PATRICK BENOIT AND KELLY LENE YEARWOOD

IN THE DISTRICT COURT OF TULSA COUNTY STATE OF OKLAHOMA BIRCH COMPANY, LLC Plaintiff, v. PATRICK BENOIT AND KELLY LENE YEARWOOD, Defendants. Case No. PETITION COMES NOW, Plaintiff Birch Company, LLC ("Plaintiff"), for its causes of action against Defendants Patrick Benoit and Kelly Lene Yearwood ("Defendant"), alleges and states as follows: PARTIES, JURISDICTION, AND VENUE 1. Plaintiff is an Oklahoma Limited Liability Company with its principal place of business in Tulsa County, Oklahoma. 2. On information and belief, Defendant Patrick Benoit is an individual resident of the State of Oklahoma. 3. On information and belief, Kelly Lene Yearwood is an individual resident of the State of Oklahoma. 4. This Court has subject matter jurisdiction over this action because the claims arise under the laws of the State of Oklahoma and the amount in controversy exceeds the jurisdictional minimum of this Court. 5. Personal jurisdiction is proper because Defendant resides in Tulsa, Oklahoma, and/or transacted business and committed tortious acts in Tulsa, Oklahoma, giving rise to the claims alleged herein. 6. Venue is proper in this Court pursuant to Oklahoma law because the acts and omissions complained of occurred in this County. FACTUAL BACKGROUND 7. On November 1, 2022, Plaintiff and Defendant entered a written contract (the "Contract") whereby Plaintiff agreed to construct a house in exchange for Defendant’s payment (See Exhibit “A’). 8. On December 1, 2022, Plaintiff and Defendant entered a second written contract (the "Contracts") whereby Plaintiff agreed to construct a house in exchange for Defendant's payment (See Exhibit “B"). 9. Plaintiff fully performed, or was ready, willing, and able to perform, all material obligations required of Plaintiff under the Contract, including by providing the agreed services as set forth in the Contracts. 10. Defendant failed to pay the amounts owed under the Contracts, including but not limited to the principal sum of $9,759.58 and $94,414.91, respectively, which became due on or about January 1, 2025, despite due demand. 11. After Plaintiff demanded payment, Defendant, on or about October 1, 2025, published and/or caused to be published false statements of fact about Plaintiff to third parties, knowing such statements were false or acting with reckless disregard for their truth or falsity (see Exhibit “B’) 12. Defendant’s statements were communicated to the general public, were unprivileged, and were made with the intent to harm Plaintiff’s reputation and business. 13. As a direct and proximate result of Defendant’s nonpayment and defamatory statements, Plaintiff has suffered damages, including lost income, damage to reputation and goodwill, out-of-pocket losses, and other consequential damages, in amounts to be proven at trial. 14. Defendant’s conduct was willful, malicious, and in reckless disregard of Plaintiff’s rights. CAUSES OF ACTION BREACH OF CONTRACT 15. Plaintiff incorporates by reference the allegations of paragraphs 1 through 14 as though fully set forth herein. 16. The Contract is a valid and enforceable agreement between Plaintiff and Defendant. 17. Plaintiff performed all conditions, covenants, and promises required of Plaintiff under the Contract, or performance was excused. 18. Defendant breached the Contract by failing to pay the amounts due and owing to Plaintiff as required by the Contract. 19. As a direct and proximate result of Defendant’s breach, Plaintiff has sustained damages in an amount to be determined at trial, including but not limited to unpaid contract sums, interest, and consequential damages. DEFAMATION (SLANDER AND/OR LIBEL) 20. Plaintiff incorporates by reference the allegations of paragraphs 1 through 19 as though fully set forth herein. 21. Defendant published false statements of fact about Plaintiff to third parties, which are defamatory per se and/or defamatory per quod. (See Exhibit "B"). 22. Defendant knew the statements were false or acted with actual malice and/or reckless disregard for the truth, or at a minimum acted negligently in publishing the statements. 23. The statements were unprivileged and were published without consent. 24. The statements have a natural tendency to injure, and did injure, Plaintiff’s reputation, exposing Plaintiff to public hatred, contempt, ridicule, and professional harm, and caused special and general damages to Plaintiff. 25. As a direct and proximate result, Plaintiff has suffered damages in an amount to be determined at trial, including reputational harm, humiliation, emotional distress, and economic losses. BUSINESS DISPARAGEMENT / INJURIOUS FALSEHOOD 26. Plaintiff incorporates by reference the allegations of paragraphs 1 through 25 as though fully set forth herein. 27. Defendant published false statements disparaging the quality of Plaintiff's goods, services, or business, to third parties. (See Exhibit "B") 28. Defendant published such statements with knowledge of falsity, reckless disregard for the truth, or negligence, and without privilege. 29. The statements caused pecuniary loss to Plaintiff, including lost sales, lost business opportunities, and increased costs, in amounts to be proven at trial. FALSE LIGHT 30. Plaintiff incorporates by reference the allegations of paragraphs 1 through 29 as though fully set forth herein. 31. Defendant publicized matters concerning Plaintiff that placed Plaintiff in a false light highly offensive to a reasonable person, including by attributing to Plaintiff conduct or characteristics that are false. (See Exhibit "B") 32. Defendant acted with knowledge of or reckless disregard as to the falsity of the publicized matters and the false light in which Plaintiff would be placed. 33. As a direct and proximate result, Plaintiff suffered damages, including reputational harm and economic losses. DAMAGES 34. As a result of Defendant’s conduct, Plaintiff is entitled to recover all damages permitted by law, including but not limited to: actual damages; general and special damages; consequential damages; reputational and economic damages; and pre- and post-judgment interest at the maximum lawful rates. 35. Defendant’s conduct was willful, wanton, malicious, and in reckless disregard of Plaintiff’s rights, entitling Plaintiff to an award of exemplary or punitive damages in an amount to be determined by the trier of fact, to the extent permitted by Oklahoma law. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays for judgment in its favor and against Defendant as follows: a) For judgment on the Breach of Contract claim awarding Plaintiff compensatory damages in an amount to be proven at trial, including unpaid amounts due under the Contract and consequential damages. b) For judgment on the Defamation (Slander and/or Libel) claim awarding Plaintiff general and special damages, including reputational harm and economic losses, in amounts to be proven at trial; c) For judgment on the Business Disparagement/Injurious Falsehood claim awarding Plaintiff pecuniary and consequential damages in amounts to be proven at trial; e) For judgment on the False Light claim awarding Plaintiff damages for mental anguish, reputational harm, and related losses; f) For an award of exemplary or punitive damages to the extent permitted by Oklahoma law; g) For pre-judgment and post-judgment interest at the maximum lawful rates; h) For Plaintiff’s costs of suit, including attorney’s fees, and such other and further legal or equitable relief as the Court deems just and proper. VERIFICATION I, Angus Martin as CEO of Birch Company, LLC, state under oath that I have read the foregoing Petition and that the facts stated therein are true and correct to the best of my knowledge and belief. Date: 2/12/76 Birch Company, LLC By: Angus Martin, CEO Respectfully submitted, Kevin V. Cox, Esq. By: Kevin V. Cox, OBA No. 20970 320 S Boston Ave #320 Tulsa, OK 74103 (918) 984-2410 [email protected] Attorney for Plaintiff REAL ESTATE PURCHASE AND CONSTRUCTION CONTRACT REAL ESTATE PURCHASE CONSTRUCTION CONTRACT (this "Contract") is entered into this 9th day of December 2022, by and between The Birch Company, an Oklahoma limited liability company ("Builder"), and Patrick Benoit and Kelli Lene Yearwood ("Owner"). For and in consideration of mutual covenants, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Builder hereby agree as follows: Section 1. The Property. Owner owns the real property located in the City of Eufaula, McIntosh County, Oklahoma, more particularly described as [Address to be assigned at closing of lot in ] (the "Property"). Section 2. Construction of House. Builder will construct a house (the "House") on the Property. Builder agrees to finish the House in substantial compliance with the following changes requested by Owner (collectively, the Contract Documents): (a) this Contract and all exhibits attached hereto, (b) the Budget, attached here to BirchCo Estimator, and (c) Floor plan or flyer of home, (plans will be sent to architect after contract is executed and Owner will have approval meeting with Builder) All Exhibits to this Contract are incorporated by reference and made a part of this Contract as if fully set forth herein. Owner understands that Builder may substitute like-quality building materials or change the Plans and Specifications and/or Floor Plan, for efficient construction of the House, without Owner's consent if Owner does not chose in a timely manner or holds up construction on the home. This will be notified in writing and Owner has 5 business days to select if this situation arises. Section 3. Financing Contingency. Owner will be carrying the financing. Section 4. Down Payment and Contract Price. Subject to adjustment as provided herein, the contract price for construction of the House shall be the Cost of the Work (defined below) plus the Builder's Fee (the "Builder's Fee") in the amount equal, 15% of cost of the work. The Contract Price is currently estimated to be $553,531.73 OWNER AGREES THAT THE CONTRACT PRICE IS AN ESTIMATE, IS NOT BINDING ON BUILDER, AND IS SUBJECT TO CHANGE. NO FIXED PRICE HAS BEEN QUOTED OR AGREED UPON. NO GUARANTEED MAXIMUM PRICE HAS BEEN PROVIDED TO OWNER. THE ACTUAL CONTRACT PRICE TO BE PAID WILL BE THE COST OF WORK PLUS THE BUILDER FEE. On a periodic basis, Builder shall provide Owner with statements detailing a revised estimate of the Cost of Work for provide such confirmation, to Builder's satisfaction, Builder may terminate this Contract, retain the Down Payment, and any amounts paid to Builder by Owner, and neither party shall have any further obligation under this Contract. Section 4. Down Payment and Contract Price. Subject to adjustment as provided herein, the contract price for construction of the House shall be the Cost of the Work (defined below) plus the Builder's Fee (the "Builder's Fee") in the amount equal, 15% of cost of the work. The Contract Price is currently estimated to be $553,531.73. OWNER AGREES THAT THE CONTRACT PRICE IS AN ESTIMATE, IS NOT BINDING ON BUILDER, AND IS SUBJECT TO CHANGE. NO FIXED PRICE HAS BEEN QUOTED OR AGREED UPON. NO GUARANTEED MAXIMUM PRICE HAS BEEN PROVIDED TO OWNER. THE ACTUAL CONTRACT PRICE TO BE PAID WILL BE THE COST OF WORK PLUS THE BUILDER FEE. On a periodic basis, Builder shall provide Owner with statements detailing a revised estimate of the Cost of Work for the foregoing period and the adjusted estimate of the Contract Price. Owner shall initial each such periodic statement. The Contract Price shall be payable as follows: (a) $19,000.00 (the "Down Payment") delivered by Owner to Builder upon the signing of this Contract, to be applied against the Contract Price at Completion. Builder acknowledges receipt of the Down Payment which may be deposited in any account maintained by Builder; (b) Owner shall pay Builder the remainder of the Contract Price in accordance with the draw schedule (the "Draw Schedule") set forth on Exhibit D attached hereto; and (c) any portion of the Contract Price unpaid as of the Completion Date shall be paid by Owner to Builder by cash, cashier's check or certified funds at Completion. (d) Invoices are due upon receipt. If 7 days goes by without payment then the builder reserves the right to stop progress on the job. The Purchase Price has been calculated based on the current prices for the component building materials. However, the market for the building materials that are hereafter specified is considered to be volatile, and sudden price increases could occur. The Builder agrees to use his best efforts to obtain the lowest possible prices from available building material suppliers, but should there be an increase in the prices of these specified materials that are purchased after execution of Contract for use in the completion of the House, the Owner agrees to pay that cost increase to the Builder. Any claim by the Builder for payment of a cost increase, as provided above, shall require written notice delivered by the Builder to the Owner stating the increased cost and requesting the invoice paid in which will be due in 5 business days. Section 5. Commencement of Construction of Modifications. Subject to Permitted Delays, Builder agrees to begin construction of the Modifications to the House within (a) 150 days after the date of this Contract, in the event Owner is paying cash for the Property, or (b) 30 days after Builder's receipt of the Loan Commitment, in the event Owner is obtaining a loan to purchase the Property. "Permitted Delays" mean any of the following: (1) any act by Owner or Owner's lender, if applicable, which causes or contributes to any delay in construction or any act of omission by Owner or Owner's lender, if applicable, and/or (2) any event of force majeure, act of God, fire or other casualty, delay in deliveries, strikes, boycotts, or the non-availability of materials, and/or (3) any other causes beyond Builder's reasonable control. Section 6. Construction Standards. The House shall be constructed in substantial compliance with: (i) the Modifications; (ii) applicable state and local building codes; and (iii) the "Standards for Residential Construction" provided in the Limited Warranty (as defined in Section 9). Whether or not associated with conditions covered by the Limited Warranty, builder expressly disclaims all warranties, including but not limited to, any express or implied warranties related to the presence of mold, mildew, fungi, or spores. Owner agrees to hold Builder, its agents, employees, representatives and assigns, harmless from any or all loss, damage, claim, injury, loss of income, emotional distress, death, loss of use, loss of value, adverse health effects or any other effects, illness, allergic reaction which Owner, Owner's family, or invitees may sustain as a result of the presence of mold, mildew, fungi, or spores, which is or may be present in or associated with the House or the Property. Section 7. Change Orders. Any requests for changes, variation, alterations, upgrades, deletions or additions from the Contract Documents shall require the mutual written agreement of Builder and Owner (each, a "Change Order"). Any items selected by Owner which exceed any cost allowances specified in the Contract Documents shall also be deemed a Change Order. Builder may elect not to accept any request by Owner for a Change Order, in Builder's sole discretion. Owner shall only request changes, variations, alterations, upgrades, deletions or additions to the Contract Documents from Builder, and Owner agrees not to issue instructions or negotiate for additional work with Builder's subcontractors, vendors or suppliers. Upon Builder's request, Owner shall pay in advance for any and all changes or alterations in the Contract Documents that increase the Contract Price, plus 15.00% of the cost of such change or alteration. Additionally, Owner will pay Builder an administrative fee equal to Zero per Change Order. The amount listed in a Change Order representing the cost of implementing a change is merely Builder's estimate of the cost of work to be performed or the materials to be purchased, and Owner agrees to pay Builder's actual cost plus the administrative fee. In Builder's sole discretion, Builder shall elect that Owner will either (a) pay Builder cash in advance for any Change Order, or (b) the Contract Price for the construction of the House shall be increased by such amount. Owner acknowledges that the appraised value of the Property does not necessarily increase by the value or cost of any Change Order. Any sums paid or due by Owner to Builder pursuant to a Change Order shall not be refunded under any circumstances (even in the event of termination of this Contract by either party), and are separate from and in addition to the Down Payment and the Contract Price. Builder acknowledges that Owner will need the prices of various options from the Builder in order to make decisions which impact the cost and the construction of the House. Owner acknowledges that excessive requests for prices take valuable time from the Builder and its suppliers and subcontractors. Therefore, the Builder may assess an administrative fee of $50.00 per price request. Builder will waive this administrative fee for the first 2 price requests. This provision to pay any overages due on any Change Orders shall survive this Contract and termination of this Contract. It is also understood that with each change order there will be a time associated with the performance of each change order. Owner can expect delays in construction once a change order is approved. Section 8, Title and Deed: Survey. On the Closing Date, Builder shall transfer title to the Property by General Warranty Deed warranty deed (the "Deed") in statutory form. No later than ten (10) days prior to the Closing Date, Builder will deliver or make available to Owner an abstract of title certified at least to the date of this Contract. Owner may, at Owner's expense and in Owner discretion, obtain any of the following: (a) a title opinion or title commitment and title insurance policy, or (b) a survey of the Property. Owner may object to any issues of title which constitute a valid objection to title under the Real Estate Title Examination Standards of the Oklahoma Bar Association. In the event any valid objections are raised by Owner, Builder may, in Builder's sole discretion, remove or cure such objections to title prior to the Closing Date. If Builder fails to remove or cure any such objections, Owner's sole and exclusive remedy will be to (a) purchase the Property subject to such objections, or (b) terminate this Contract by written notice to Builder, in which case, all sums shall be returned to Owner except the Earnest Money, the Down Payment, and any amounts paid by Owner for Change Orders, and neither party shall have any further obligation under this Contract. Section 9. Warranty: Waiver: Release. At Closing, Builder agrees to provide Owner with a limited warranty (the "Limited Warranty") on the constructed Work in accordance with the Limited Warranty, attached hereto as Exhibit E. Owner RECOGNIZES THAT THE LIMITED WARRANTY AS ATTACHED IS THE ONLY WARRANTY OF ANY KIND BEING OFFERED TO Owner FROM BUILDER, AND THAT BUILDER IS ABSOLUTELY NOT RESPONSIBLE FOR ANY CLAIMS OF ANY KIND THAT ARE NOT SPECIFICALLY COVERED BY THE LIMITED WARRANTY. Except for the specific terms of the Limited Warranty, the Work is being provided from Builder to Owner strictly in an AS-IS, WHERE-IS, WITH ALL FAULTS CONDITION. The Limited Warranty is NOT transferable and not assignable by Owner to any person or entity and is personal to Owner only. EXCEPT FOR THE LIMITED WARRANTY, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR HABITABILITY, WORKMANSHIP AND MATERIALS ARE ABSOLUTELY AND SPECIFICALLY DISCLAIMED BY BUILDER AND COMPLETELY EXCLUDED. This Section 9, in its entirety, shall expressly survive the Closing and the termination of this Contract. (a) In the event that Owner enters into the construction area of the House or Property at any time prior to completion of construction, and without the advance written consent of Builder, then Owner agrees that Owner does so at Owner's own risk, and Owner releases and discharges Builder, and agrees to indemnify and hold Builder harmless from any and all claims for injuries or damages to person or property that arise from any such entry into the construction area. No personal property or possessions of the Owner shall be placed anywhere in the construction area prior to completion of construction without the advance written consent of Builder. If Builder does not grant such permission to Owner, then Owner assumes all risk as to the loss or damage of such items. (b) Owner has examined, studied, accepted, and approved the Contract Documents, including but not limited to the scope of work and building plans and specifications for the House, and Owner absolutely waives and releases Builder for any design or plan defects in same to the extent that such documents, plans and/or specifications were provided by Owner or other third party. Owner ACKNOWLEDGES: THAT THE LIMITED WARRANTIES, DISCLAIMERS AND WAIVERS CONTAINED IN THIS CONTRACT ARE REASONABLE UNDER THE CIRCUMSTANCES AND FREELY ENTERED INTO; THAT Owner AND BUILDER HAVE PARITY IN THIS CONTRACT; AND THAT THIS CONTRACT IS EQUITABLE AND EVEN-HANDED BETWEEN Owner AND BUILDER; THAT WITHOUT THE LIMITATIONS, DISCLAIMERS AND WAIVERS PROVIDED BY THIS CONTRACT, BUILDER WOULD NOT ENTER INTO THIS CONTRACT. Section 10. Punch list: Inspections. Prior to Closing, Owner shall inspect the House. If Owner is satisfied that the House is in substantial compliance with the Contract Document, then Owner shall sign the Certificate of Acceptance (a copy of which is attached to this Contract as Exhibit E.). Owner will provide a signed detailed list (the "Punch List") of any defects or uncompleted work or any repair or completion items at least one (1) day before the Closing. Failure to timely provide Builder with the Punch List shall constitute absolute and complete acceptance of the House by Owner, and Builder will have no obligations to make repairs to the House except as otherwise described in the Warranty. After Builder and Owner agree on the Punchlist, Builder will remedy such items. If any Punch List items cannot be completed before Closing, Builder shall have a reasonable time after Closing to complete any Punch List items (in any event, Builder shall have at least sixty (60) days after Closing to complete the Punch List items). Owner agrees that incomplete Punch List Items shall not be a valid basis for delaying the Closing. All warranty work and repairs and completion of Punch List items will be done Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m., except holidays. Owner must make arrangements to be at the House for warranty work to be performed. This Section 10 shall expressly survive the Closing and the termination of this Contract. Section 11. Closing: Possession. The closing date (the "Closing Date") for the closing (the "Closing") of this Contract, will be at a date and time mutually agreeable to the parties, but in no event later than 15 days from the date Builder notifies Owner that the Modifications to the House are substantially complete. At Closing, Owner will be given possession of the Property, and Owner will not receive possession of the Property prior to Closing. At Closing, Owner will pay to Builder the remainder of the Purchase Price, and no portion of the remainder of the Purchase Price or any sums due under this Contract or any Change Order will be withheld from Builder at Closing. The Closing shall occur at EirsTitle in Broken Arrow Oklahoma. Subject to Permitted Delays, Builder will complete the Modifications to the House in substantial compliance with the Contract Documents on or before 11/2023. The terms "substantial completion" or "substantially complete" or "substantial compliance" mean the House has been constructed in accordance with the construction standards specified in Section 6 of this Contract. If Owner fails or refuses to close, Builder, in addition to any other remedies available to Builder, shall be entitled to receive from Owner a per diem interest charge on the Purchase Price at Builder's construction loan interest rate plus one percent (1%). At Closing, Builder and Owner shall exchange the following: Builder shall provide Owner with: (i) applicable manufacturer's warranties and manuals; (ii) a Subterranean Termite Soil Treatment Certification; and (iii) the Warranty, if not already delivered to Owner; the Owner shall deliver to the Builder: (i) the balance of the Purchase Price, via cashier's check or other certified funds; (ii) the Certificate of Acceptance (if not already delivered to Builder); and (iii) any other documents necessary to complete the Contract. Section 12. Closing Costs: Taxes. Builder shall pay the cost of any documentary tax stamps due on the Deed and the cost to certify the abstract of title to the Closing Date. Owner shall pay all other closing costs, including the cost of recording the Deed, and all costs charge by Owner's lender, if applicable. Owner and Builder shall each pay their own attorneys' fees, if applicable. All ad valorem taxes and special assessments imposed on the Property for the current tax year shall be paid by Builder if due and payable before the Closing Date, and by Owner if due and payable on or after the Closing Date. If the amount of ad valorem or special assessments for the current tax year has not been determined by the Closing Date, the taxes shall be prorated based on the preceding tax year. Builder shall pay all utility costs, homeowner's association dues, if any, and any and all other expenses related to the Property, which were incurred for periods prior to the Closing Date, and Owner shall pay such costs and expenses incurred for periods following and including the Closing Date. Section 13. Post-Closing Repairs. This section is intended to comply with the provisions of 15 O.S. ◇ 765.6 (the "Act"). Builder and Owner agree to resolve any issues, after the Closing Date, relating to an alleged Construction Defect in accordance with this section. For purposes of this Contract a "Construction Defect" shall have the same meaning as defined in the Act as of the date of this Contract. The method of dispute resolution provided in this section is a mandatory condition precedent to pursuing any such matter in arbitration. The provisions of this section shall expressly survive the Completion and the termination of this Contract. (a) Notice of Defects. At least thirty (30) days before submitting any Dispute involving a Construction Defect to arbitration, Owner shall send Builder a notice of defects by certified mail, return receipt requested. The notice (the "Notice of Defect") shall state that the Owner asserts a claim involving a Construction Defect, and shall include the following: (i) the name, address and telephone number of the Owner; (ii) the address of the House; (iii) a detailed list of every item which Owner alleges is a Construction Defect; and (iv) copies of any and all documentation produced by any third-parties who inspected the Construction Defect for Owner. Within five (5) business days after receipt of the Notice of Defects, Builder shall provide a written response to Owner with either: (i) an offer to repair, replace or compensate the Owner, or (ii) a request for an inspection of the House. If Builder's response to the Notice of Defect includes a request for an inspection of the House, Owner shall make the House available for such an inspection within five (5) days after Owner receives Builder's response. Builder may inspect the House and conduct tests to determine the nature and cause of the alleged Construction Defects and the appropriate remedy. If Builder has sent Owner a request for an inspection, Builder will provide Owner with a written response to Owner with either: (i) an offer to repair, replace or compensate the Owner or (ii) a statement that Builder will not proceed to further remedy the alleged Construction Defect. Within five (5) days after Owner receives the response of Builder (whether or not an inspection has been conducted), Owner shall provide a written response to Builder and may include a counteroffer to Builder's original offer to repair, replace or compensate Owner, if applicable. Within five (5) days after Builder receives the response of Owner, Builder may make a final offer to repair, replace or otherwise compensate Owner for the alleged Construction Defect. Section 14. Suspension of Work - Cancelation. Rights to suspend work or cancel this Contract shall be controlled by the following: (a) Suspension of Work. If Owner fails to make any payment due, or fails to comply with any other material obligation under this Contract, Builder at his sole option and without penalty is authorized to suspend work until payment is made and/or Owner has fully complied with the terms of the Contract. (b) Cancelation by Mutual Consent. This Contract may be canceled by mutual consent at any time upon execution of a termination agreement signed by both parties. (c) Cancelation by Builder. In addition to the right to suspend work, if Owner fails to make any payment due, or fails to comply with any other material obligation under this Contract, Builder at his sole option, and unless cured, may cancel the Contract in accordance with the cancelation procedures stated below. (d) Cancelation by Owner. If the Builder fails to supply proper materials or skilled workers, fails to pay for materials, labor or equipment, fails to perform this Contract in a timely manner, or otherwise materially breaches the Contract provisions, Owner at their sole option, and unless cured, may cancel this Contract in accordance with the cancelation procedures stated below. (e) Cancelation Procedures. Owner or Builder will deliver to the other party a written notice of intention to cancel. Such notice will be dated and signed, and will list the specific cause or causes that would justify cancelation. The recipient party will have seven (7) days from the date of the notice (or such additional time as the parties may agree to in writing) to remedy or cure all listed causes that would justify cancellation. Upon the expiration of seven (7) days without remedy or cure, the Contract may be canceled upon delivery to the other party of a written cancellation document. Any cancellation sought by Owner will be contingent on payment in full to the Builder of all costs and expenses incurred as of the date of cancellation, inclusive of change orders. Upon cancelation by the Builder, Owner shall be liable for and shall pay to the Builder all costs and expenses incurred as of the date of cancelation, inclusive of change orders, and liquidated damages (not as a penalty, since both Parties acknowledge that it would be difficult, or impossible to ascertain Builder's damages or losses in the event of Owner's breach of this Contract). (f) Other Default and Remedies. If Builder breaches this Contract for reasons other than those specified above, Owner may, as Owner's sole and exclusive remedy hereunder, submit this matter to binding arbitration in accordance with Section 16, after compliance with Section 13, if applicable. EXCEPT AS PROVIDED HEREIN, IN NO EVENT SHALL Owner OR BUILDER BE LIABLE TO EACH OTHER FOR ANY PUNITIVE, SPECULATIVE, CONSEQUENTIAL SPECIAL, TREBLE, EXEMPLARY, OR OTHER RELATED DAMAGES OF ANY KIND. The prevailing party in any legal proceeding or arbitration based upon this Contract shall be entitled to recover reasonable attorneys' fees, including expenses and court or dispute resolution costs. Section 15. Risk of Loss. All risk of loss to the Property from fire, casualty or other causes shall be on Builder until the earliest of: (a) the transfer of possession of the Property by Builder to Owner, (b) the Closing Date, or (c) any occupancy of the Property by Owner. After the risk of loss is transferred to Owner, Owner shall be responsible for all insurance related to the Property. If casualty by fire or otherwise, occurring prior to Closing, damages more than twenty percent (20%) of the House, then Builder shall have the option to terminate this Contract in writing and return to Owner the Earnest Money and Down Payment without interest. If Builder elects to terminate this Contract and complies with this Section, then Owner shall have no other remedy for Builder's failure to proceed to Closing, and the parties shall each be released from all other obligations that may exist by virtue of this Contract. In the event: (i) the damage exceeds said percentage and the Builder does not give Owner notice of Builder's intent to terminate this Contract as provided above, or (ii) the damage does not exceed said percentage, then Builder shall repair the damage and rebuild the House as soon as reasonably practicable, and the Closing shall be delayed as necessary to allow the completion of such repairs and rebuilding work. Section 16. Arbitration of Disputes. Any and all disputes, controversies, or claims (a "Dispute") of any kind whatsoever between Builder and Owner, including but not limited to, any Disputes arising out of or relating to: (a) this Contract, including the Contract Documents, or the breach of this Contract; or (b) any item under the Warranty (regardless as to whether such item is covered or excluded); or (c) the course of dealing by and between the parties; or (d) the construction of the House, and any alleged defects (including any alleged Construction Defects) relating thereto; or (e) the existence, construction, validity, interpretation or meaning of this Contract; or (f) the performance, non-performance, breach, enforcement, operation, continuance or termination of this Contract; or (g) the substantial completion of the House or Builder's satisfactory completion of the Punch List items, if any; or (h) violation of any law; or (i) all allegations of liability, tortious conduct, fraud, concealment, misrepresentation, negligence, etc. between Builder and Owner, shall be submitted to binding arbitration. The arbitration shall be conducted in accordance with the Construction Industry Rules of the HBA that are in effect at the time of the dispute and in the City where the Property is located. The arbitrator shall employ the construction guidelines contained in the current edition of the Residential Construction Performance Guidelines in determining what constitutes a defect in construction. Arbitrators will be selected in accordance with the Rules and with the mutual consent of Builder and Owner. The determination of the arbitrators as to the resolution of the Dispute shall be binding on both Builder and Owner. The arbitrators shall conduct the arbitration such that a final result, determination, finding, judgment and/or award (the "Final Determination") is made or rendered as soon as practicable. Nothing in this section shall prohibit either Builder or Owner from instituting litigation to enforce any Final Determination. THE PROVISIONS OF THIS SECTION SHALL BE A COMPLETE DEFENSE TO ANY SUIT, ACTION OR PROCEEDING INSTITUTED IN ANY FEDERAL, STATE OR LOCAL COURT OR BEFORE ANY ADMINISTRATIVE TRIBUNAL WITH RESPECT TO ANY CONTROVERSY, DISPUTE OR CLAIM TO BE ARBITRATED IN ACCORDANCE WITH THIS CONTRACT. Notwithstanding the foregoing, nothing contained in this section shall be deemed to limit or restrict Builder's right to file a materialmens or mechanics lien against the Property or prosecute foreclosure proceedings based on such lien. If Builder files an action to foreclose its lien, the district court may hear and rule only upon issues relating to the validity of the lien filing. All other issues, including without limitation, counterclaims of Owner, shall be held in abeyance by the district court so that such issues may be resolved in binding arbitration. If the arbitrator rules in favor of the Builder, then the Builder may have the arbitrator's ruling certified as a judgment in the district court and Builder may pursue its in rem rights under the lien. This Section shall survive the Completion and/or the termination of this Contract. Section 17. Broker Commissions. Each party represents and warrants to the other party that there are no claims for brokerage commissions or finder's fees in connection with the Property or this Contract, except as follows: (a) Briley Wall commission. Further, Owner agrees to indemnify Builder from any other claim for real estate commissions in connection with this Contract. Any commission due will be paid at closing. Section 18. Waiver, Amendments, Entire Agreement. This Contract may be modified or amended or any term of this Contract waived only by a written instrument signed by both Builder and Owner. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect its or their right at a later time to enforce the same. This Contract and the exhibits attached hereto set forth the entire understanding and agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof. Section 19. Assignment. Owner may not assign or transfer Owner's rights or obligations under this Contract without the prior written consent of Builder. Subject to the foregoing, this Contract shall insure to the benefit of and be binding upon only the heirs, personal representatives, successors and assigns of the parties. Section 20. Miscellaneous. Time is of the essence of this Contract. This Contract may be executed in one or more counterparts, each of which will be an original instrument, but all of which will constitute one agreement. Each term, provision, condition, and covenant contained in this Contract shall be jointly and severally binding on each of the Owners. The section headings in this Contract are for reference purposes only and are not intended in any way to describe, interpret, define or limit the scope, extent or intent of this Contract or any part hereof. In case any one or more provisions contained in this Contract will for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision hereof, and this Contract will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. This Contract shall be governed, construed and interpreted in accordance with the laws of the State of Oklahoma. Section 21. Copyrighted Material;Disclaimer. This Contract is copyrighted and may not be reproduced in whole or in part, without the express written consent of the Oklahoma State Home Builders Association. This Contract may be utilized only by members in good standing of the Oklahoma State Home Builders Association (the "Association"). NOTHING CONTAINED IN THIS CONTRACT SHALL BE DEEMED THE RENDERING OF LEGAL ADVICE BY THE ASSOCIATION. Owner AND BUILDER DO HEREBY RELEASE, REMISE AND FOREVER DISCHARGE THE ASSOCIATION, ITS AGENTS, EMPLOYEES, ASSIGNS AND REPRESENTATIVES OF AND FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, CONTROVERSIES OR CAUSES OF ACTION, OF WHATSOEVER NATURE, IN LAW OR IN EQUITY, WHETHER KNOWN OR UNKNOWN, WHICH Owner OR SELLER HAVE OR MAY HAVE ARISING OUT OF OR RELATED TO THIS CONTRACT OR ANY PROVISIONS THEREOF BY BUILDER AND Owner. Owner and Builder are encouraged to seek independent legal advice before executing this Contract. Section 22. Notice. All notices or other communications which may be or are required to be given under this Contract to any party hereto shall be in writing and be (a) delivered in person to such party or to an officer or agent of such party; (b) sent by fax; (c) sent by a recognized overnight courier service, such as Federal Express; (d) sent by United States Postal Service certified mail, postage prepaid, return receipt requested, to such party: BUILDER: Name : The Birch Company Address : 11911 S Oxford Ave Suite 100 Tulsa OK, 74137 Fax : Phone : 918.982.3120 Email : [email protected] Owner: Name : Patrick Benoit & Kelli Lene Yearwood Address : 4 [blacked out] , [blacked out] Phone : 8[blacked out]9 Email : [blacked out]@email.com Such Notice or other communication shall be deemed to have been given, delivered and received upon the earlier of: (i) on the third (3rd) day after mailing, or (ii) the date of actual receipt. Section 23. List of Exhibits. The following exhibits are attached to this Contract and incorporated into this Contract by reference: Section 24. BuilderTrend- (Communication): Upon final signing of this contract the medium in which communication between the Owner and Builder will solely be through the management software titled "BuilderTrend." Phone calls, Text messages and Emails are not considered valid communication and will not be followed up on. In case of an emergency our main office line is available at 918-764-8869. All selections, documents and correspondence through "BuilderTrend" will be used to construct the home inclusively. Section 25. Special Provisions. Owner is carrying financing and this is a Cost Plus 15% Contract Plans are changing but client will approve final plans when completed IN WITNESS WHEREOF, the parties have executed this Contract as of the date first set forth above. Owner: Patrick Benoit Name : Kelli Lene Yeastwood Name : BUILDER : By: Brett Davis Brett, Davis The Birch Company an Oklahoma limited liability company EXHIBIT E CERTIFICATE OF ACCEPTANCE Patrick Benoit and Kelli Lene Yearwood ("Owner") certifies that all of the terms and conditions of the Construction Contract ("Contract") entered into by Owner and „The Birch Company, an Oklahoma limited liability company.. ("Builder") for the construction and purchase of a house ("House") located at TBD, McIntosh., have been met, and Owner and Builder further acknowledge and agree as follows: 1., While the House has generally been constructed in substantial compliance with the Plans and Specifications contained (as defined in the Contract), Owner understands that the House may not correspond in some respects with those Plans and Specifications because changes may have been made before or during construction., These changes may be attributed to a variety of events, including changes in topography, construction techniques, building codes, the availability of material, or other events., Owner understands that Builder is not obligated to furnish any as-built plans, specifications, or drawings of the House., Owner also understands that the House may differ in some respects from the models, drawings, maps, pictures, or other depictions of the House Owner was shown., Owner acknowledges that minor variations may exist in the outside and inside dimensions, configurations, colors, location, general appearance, and other characteristics., Owner has had an opportunity to inspect all aspects of the House and real property upon which it is located (the "Property") and has done so or elected not to do so. 2., Owner has inspected the House and the Property., Owner may have also delivered to Builder the Punchlist (as defined in the Contract)., Except as noted on the Punchlist (if delivered) or as provided in the Warranty, Owner accepts the House and Property as is and acknowledges that from now on Owner will have no claim against Builder for any item that was not listed on the Punchlist that could reasonably have been ascertained or observed during Owner's inspection., Owner has no objections relating to color, appearance, type or brand of equipment, dimension or size, location, breakage or cracks, or any other conditions that reasonably could have been discovered by Owner during the inspection. 3., Owner understands that no warranties are being made by Builder except those appearing in the written limited warranty provided by Builder as part of the Contract (the "Warranty")., All statements, representations, promises, and warranties made by Builder or any agent of Builder are superseded by the Warranty and that Owner is not relying on any representations, REAL ESTATE PURCHASE AND CONSTRUCTION CONTRACT REAL ESTATE PURCHASE CONSTRUCTION CONTRACT (this "Contract") is entered into this 1st day of November 1, 2022, by and between The Birch Company, an Oklahoma limited liability company ("Builder"), and Patrick Benoit and Kelli Lene ("Owner"). Kelli Lene Yearwood For and in consideration of mutual covenants, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Builder hereby agree as follows: Section 1. The Property. Owner owns the real property located in the City of Eufaula, McIntosh County, Oklahoma, more particularly described as TBD (Address to be assigned at closing of lot in ) (the "Property"). Section 2. Construction of House. Builder will construct a house (the "House") on the Property. Builder agrees to finish the House in substantial compliance with the following changes requested by Owner (collectively, the Contract Documents): (a) this Contract and all exhibits attached hereto, (b) the Budget, attached here to BirchCo Estimator, and (c) Floor plan or flyer of home, (plans will be sent to architect after contract is executed and Owner will have approval meeting with Builder) All Exhibits to this Contract are incorporated by reference and made a part of this Contract as if fully set forth herein. Owner understands that Builder may substitute like-quality building materials or change the Plans and Specifications and/or Floor Plan, for efficient construction of the House, without Owner's consent if Owner does not chose in a timely manner or holds up construction on the home. This will be notified in writing and Owner has 5 business days to select if this situation arises. Section 3. Financing Contingency. Owner shall have 5 days from the date of this Contract (the "Financing Contingency Period") to obtain all financing necessary for the purchase of the House and Property. If Owner fails to terminate this Contract by delivering written notice to Builder during the Financing Contingency Period, if applicable, Owner may not terminate this Contract for failure to obtain financing. Prior to the expiration of the Financing Contingency Period, Owner, at the request of Builder, will deliver a written and signed loan commitment (the "Loan Commitment") from Owner's lender to Builder, in form and substance acceptable to Builder. The Loan Commitment must provide that Owner has satisfied all of lender's financial requirements (those items relating to Owner's net worth, creditworthiness and income). Builder may, at any time during the construction of the House, require Owner to provide additional confirmation of Owner's financial ability to Contract, and such confirmation shall be provided to Builder in writing within five (5) business days of the request by Builder. If Owner does not provide such confirmation, to Builder's satisfaction, Builder may terminate this Contract, retain the Down Payment, and any amounts paid to Builder by Owner, and neither party shall have any further obligation under this Contract. Section 4. Down Payment and Contract Price. Subject to adjustment as provided herein, the contract price for construction of the House shall be the Cost of the Work (defined below) plus the Builder's Fee (the "Builder's Fee") in the amount equal, 15% of cost of the work. The Contract Price is currently estimated to be $350,070.40. OWNER AGREES THAT THE CONTRACT PRICE IS AN ESTIMATE, IS NOT BINDING ON BUILDER, AND IS SUBJECT TO CHANGE. NO FIXED PRICE HAS BEEN QUOTED OR AGREED UPON. NO GUARANTEED MAXIMUM PRICE HAS BEEN PROVIDED TO OWNER. THE ACTUAL CONTRACT PRICE TO BE PAID WILL BE THE COST OF WORK PLUS THE BUILDER FEE. On a periodic basis, Builder shall provide Owner with statements detailing a revised estimate of the Cost of Work for the foregoing period and the adjusted estimate of the Contract Price. Owner shall initial each such periodic statement. The Contract Price shall be payable as follows: (a) $10,500.00 (the "Down Payment") delivered by Owner to Builder upon the signing of this Contract, to be applied against the Contract Price at Completion. Builder acknowledges receipt of the Down Payment which may be deposited in any account maintained by Builder; (b) Owner shall pay Builder the remainder of the Contract Price in accordance with the draw schedule (the "Draw Schedule") set forth on Exhibit D attached hereto; and (c) any portion of the Contract Price unpaid as of the Completion Date shall be paid by Owner to Builder by cash, cashier's check or certified funds at Completion. (d) Invoices are due upon receipt. If 7 days goes by without payment then the builder reserves the right to stop progress on the job. The Purchase Price has been calculated based on the current prices for the component building materials. However, the market for the building materials that are hereafter specified is considered to be volatile, and sudden price increases could occur. The Builder agrees to use his best efforts to obtain the lowest possible prices from available building material suppliers, but should there be an increase in the prices of these specified materials that are purchased after execution of Contract for use in the completion of the House, the Owner agrees to pay that cost increase to the Builder. Any claim by the Builder for payment of a cost increase, as provided above, shall require written notice delivered by the Builder to the Owner stating the increased cost and requesting the invoice paid in which will be due in 5 business days. Section 5. Commencement of Construction of Modifications. Subject to Permitted Delays, Builder agrees to begin construction of the Modifications to the House within (a) 150 days after the date of this Contract, in the event Owner is paying cash for the Property, or (b) 30 days after Builder's receipt of the Loan Commitment, in the event Owner is obtaining a loan to purchase the Property. "Permitted Delays" mean any of the following: (1) any act by Owner or Owner's lender, if applicable, which causes or contributes to any delay in construction or any act of omission by Owner or Owner's lender, if applicable, and/or (2) any event of force majeure, act of God, fire or other casualty, delay in deliveries, strikes, boycotts, or the non-availability of materials, and/or (3) any other causes beyond Builder's reasonable control. Section 6. Construction Standards. The House shall be constructed in substantial compliance with: (i) the Modifications; (ii) applicable state and local building codes; and (iii) the "Standards for Residential Construction" provided in the Limited Warranty (as defined in Section 9). Whether or not associated with conditions covered by the Limited Warranty, builder expressly disclaims all warranties, including but not limited to, any express or implied warranties related to the presence of mold, mildew, fungi, or spores. Owner agrees to hold Builder, its agents, employees, representatives and assigns, harmless from any or all loss, damage, claim, injury, loss of income, emotional distress, death, loss of use, loss of value, adverse health effects or any other effects, illness, allergic reaction which Owner, Owner's family, or invitees may sustain as a result of the presence of mold, mildew, fungi, or spores, which is or may be present in or associated with the House or the Property. Section 7. Change Orders. Any requests for changes, variation, alterations, upgrades, deletions or additions from the Contract Documents shall require the mutual written agreement of Builder and Owner (each, a "Change Order"). Any items selected by Owner which exceed any cost allowances specified in the Contract Documents shall also be deemed a Change Order. Builder may elect not to accept any request by Owner for a Change Order, in Builder's sole discretion. Owner shall only request changes, variations, alterations, upgrades, deletions or additions to the Contract Documents from Builder, and Owner agrees not to issue instructions or negotiate for additional work with Builder's subcontractors, vendors or suppliers. Upon Builder's request, Owner shall pay in advance for any and all changes or alterations in the Contract Documents that increase the Contract Price, plus 15.00% of the cost of such change or alteration. Additionally, Owner will pay Builder an administrative fee equal to Zero per Change Order. The amount listed in a Change Order representing the cost of implementing a change is merely Builder's estimate of the cost of work to be performed or the materials to be purchased, and Owner agrees to pay Builder's actual cost plus the administrative fee. In Builder's sole discretion, Builder shall elect that Owner will either (a) pay Builder cash in advance for any Change Order, or (b) the Contract Price for the construction of the House shall be increased by such amount. Owner acknowledges that the appraised value of the Property does not necessarily increase by the value or cost of any Change Order. Any sums paid or due by Owner to Builder pursuant to a Change Order shall not be refunded under any circumstances (even in the event of termination of this Contract by either party), and are separate from and in addition to the Down Payment and the Contract Price. Builder acknowledges that Owner will need the prices of various options from the Builder in order to make decisions which impact the cost and the construction of the House. Owner acknowledges that excessive requests for prices take valuable time from the Builder and its suppliers and subcontractors. Therefore, the Builder may assess an administrative fee of $50.00 per price request. Builder will waive this administrative fee for the first 2 price requests. This provision to pay any overages due on any Change Orders shall survive this Contract and termination of this Contract. It is also understood that with each change order there will be a time associated with the performance of each change order. Owner can expect delays in construction once a change order is approved. Section 8. Title and Deed; Survey. On the Closing Date, Builder shall transfer title to the Property by General Warranty Deed warranty deed (the "Deed") in statutory form. No later than ten (10) days prior to the Closing Date, Builder will deliver or make available to Owner an abstract of title certified at least to the date of this Contract. Owner may, at Owner's expense and in Owner discretion, obtain any of the following: (a) a title opinion or title commitment and title insurance policy, or (b) a survey of the Property. Owner may object to any issues of title which constitute a valid objection to title under the Real Estate Title Examination Standards of the Oklahoma Bar Association. In the event any valid objections are raised by Owner, Builder may, in Builder's sole discretion, remove or cure such objections to title prior to the Closing Date. If Builder fails to remove or cure any such objections, Owner's sole and exclusive remedy will be to (a) purchase the Property subject to such objections, or (b) terminate this Contract by written notice to Builder, in which case, all sums shall be returned to Owner except the Earnest Money, the Down Payment, and any amounts paid by Owner for Change Orders, and neither party shall have any further obligation under this Contract. Section 9. Warranty: Waiver: Release. At Closing, Builder agrees to provide Owner with a limited warranty (the "Limited Warranty") on the constructed Work in accordance with the Limited Warranty, attached hereto as Exhibit E. Owner RECOGNIZES THAT THE LIMITED WARRANTY AS ATTACHED IS THE ONLY WARRANTY OF ANY KIND BEING OFFERED TO Owner FROM BUILDER, AND THAT BUILDER IS ABSOLUTELY NOT RESPONSIBLE FOR ANY CLAIMS OF ANY KIND THAT ARE NOT SPECIFICALLY COVERED BY THE LIMITED WARRANTY. Except for the specific terms of the Limited Warranty, the Work is being provided from Builder to Owner strictly in an AS- IS, WHERE-IS, WITH ALL FAULTS CONDITION. The Limited Warranty is NOT transferable and not assignable by Owner to any person or entity and is personal to Owner only. EXCEPT FOR THE LIMITED WARRANTY, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR HABITABILITY, WORKMANSHIP AND MATERIALS ARE ABSOLUTELY AND SPECIFICALLY DISCLAIMED BY BUILDER AND COMPLETELY EXCLUDED. This Section 9, in its entirety, shall expressly survive the Closing and the termination of this Contract. (a) In the event that Owner enters into the construction area of the House or Property at any time prior to completion of construction, and without the advance written consent of Builder, then Owner agrees that Owner does so at Owner's own risk, and Owner releases and discharges Builder, and agrees to indemnify and hold Builder harmless from any and all claims for injuries or damages to person or property that arise from any such entry into the construction area. No personal property or possessions of the Owner shall be placed anywhere in the construction area prior to completion of construction without the advance written consent of Builder. If Builder does not grant such permission to Owner, then Owner assumes all risk as to the loss or damage of such items. (b) Owner has examined, studied, accepted, and approved the Contract Documents, including but not limited to the scope of work and building plans and specifications for the House, and Owner absolutely waives and releases Builder for any design or plan defects in same to the extent that such documents, plans and/or specifications were provided by Owner or other third party. Owner ACKNOWLEDGES: THAT THE LIMITED WARRANTIES, DISCLAIMERS AND WAIVERS CONTAINED IN THIS CONTRACT ARE REASONABLE UNDER THE CIRCUMSTANCES AND FREELY ENTERED INTO; THAT Owner AND BUILDER HAVE PARITY IN THIS CONTRACT; AND THAT THIS CONTRACT IS EQUITABLE AND EVEN-HANDED BETWEEN Owner AND BUILDER; THAT WITHOUT THE LIMITATIONS, DISCLAIMERS AND WAIVERS PROVIDED BY THIS CONTRACT, BUILDER WOULD NOT ENTER INTO THIS CONTRACT. Section 10. Punch list; Inspections. Prior to Closing, Owner shall inspect the House. If Owner is satisfied that the House is in substantial compliance with the Contract Document, then Owner shall sign the Certificate of Acceptance (a copy of which is attached to this Contract as Exhibit E.). Owner will provide a signed detailed list (the "Punch List") of any defects or uncompleted work or any repair or completion items at least one (1) day before the Closing. Failure to timely provide Builder with the Punch List shall constitute absolute and complete acceptance of the House by Owner, and Builder will have no obligations to make repairs to the House except as otherwise described in the Warranty. After Builder and Owner agree on the Punchlist, Builder will remedy such items. If any Punch List items cannot be completed before Closing, Builder shall have a reasonable time after Closing to complete any Punch List items (in any event, Builder shall have at least sixty (60) days after Closing to complete the Punch List items). Owner agrees that incomplete Punch List Items shall not be a valid basis for delaying the Closing. All warranty work and repairs and completion of Punch List items will be done Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m., except holidays. Owner must make arrangements to be at the House for warranty work to be performed. This Section 10 shall expressly survive the Closing and the termination of this Contract. Section 11. Closing: Possession. The closing date (the "Closing Date") for the closing (the "Closing") of this Contract, will be at a date and time mutually agreeable to the parties, but in no event later than 15 days from the date Builder notifies Owner that the Modifications to the House are substantially complete. At Closing, Owner will be given possession of the Property, and Owner will not receive possession of the Property prior to Closing. At Closing, Owner will pay to Builder the remainder of the Purchase Price, and no portion of the remainder of the Purchase Price or any sums due under this Contract or any Change Order will be withheld from Builder at Closing. The Closing shall occur at FirsTitle in Broken Arrow Oklahoma. Subject to Permitted Delays, Builder will complete the Modifications to the House in substantial compliance with the Contract Documents on or before June 20th, 2023. The terms "substantial completion" or "substantially complete" or "substantial compliance" mean the House has been constructed in accordance with the construction standards specified in Section 6 of this Contract. If Owner fails or refuses to close, Builder, in addition to any other remedies available to Builder, shall be entitled to receive from Owner a per diem interest charge on the Purchase Price at Builder's construction loan interest rate plus one percent (1%). At Closing, Builder and Owner shall exchange the following: Builder shall provide Owner with: (i) applicable manufacturer's warranties and manuals; (ii) a Subterranean Termite Soil Treatment Certification; and (iii) the Warranty, if not already delivered to Owner; the Owner shall deliver to the Builder: (i) the balance of the Purchase Price, via cashier's check or other certified funds; (ii) the Certificate of Acceptance (if not already delivered to Builder); and (iii) any other documents necessary to complete the Contract. Section 12. Closing Costs; Taxes. Builder shall pay the cost of any documentary tax stamps due on the Deed and the cost to certify the abstract of title to the Closing Date. Owner shall pay all other closing costs, including the cost of recording the Deed, and all costs charge by Owner's lender, if applicable. Owner and Builder shall each pay their own attorneys' fees, if applicable. All ad valorem taxes and special assessments imposed on the Property for the current tax year shall be paid by Builder if due and payable before the Closing Date, and by Owner if due and payable on or after the Closing Date. If the amount of ad valorem or special assessments for the current tax year has not been determined by the Closing Date, the taxes shall be prorated based on the preceding tax year. Builder shall pay all utility costs, homeowner's association dues, if any, and any and all other expenses related to the Property, which were incurred for periods prior to the Closing Date, and Owner shall pay such costs and expenses incurred for periods following and including the Closing Date. Section 13. Post-Closing Repairs. This section is intended to comply with the provisions of 15 O.S. ? 765.6 (the "Act"). Builder and Owner agree to resolve any issues, after the Closing Date, relating to an alleged Construction Defect in accordance with this section. For purposes of this Contract a "Construction Defect" shall have the same meaning as defined in the Act as of the date of this Contract. The method of dispute resolution provided in this section is a mandatory condition precedent to pursuing any such matter in arbitration. The provisions of this section shall expressly survive the Completion and the termination of this Contract. (a) Notice of Defects. At least thirty (30) days before submitting any Dispute involving a Construction Defect to arbitration, Owner shall send Builder a notice of defects by certified mail, return receipt requested. The notice (the "Notice of Defect") shall state that the Owner asserts a claim involving a Construction Defect, and shall include the following: (i) the name, address and telephone number of the Owner; (ii) the address of the House; (iii) a detailed list of every item which Owner alleges is a Construction Defect; and (iv) copies of any and all documentation produced by any third-parties who inspected the Construction Defect for Owner. Within five (5) business days after receipt of the Notice of Defects, Builder shall provide a written response to Owner with either: (i) an offer to repair, replace or compensate the Owner, or (ii) a request for an inspection of the House. If Builder's response to the Notice of Defect includes a request for an inspection of the House, Owner shall make the House available for such an inspection within five (5) days after Owner receives Builder's response. Builder may inspect the House and conduct tests to determine the nature and cause of the alleged Construction Defects and the appropriate remedy. If Builder has sent Owner a request for an inspection, Builder will provide Owner with a written response to Owner with either: (i) an offer to repair, replace or compensate the Owner or (ii) a statement that Builder will not proceed to further remedy the alleged Construction Defect. Within five (5) days after Owner receives the response of Builder (whether or not an inspection has been conducted), Owner shall provide a written response to Builder and may include a counteroffer to Builder's original offer to repair, replace or compensate Owner, if applicable. Within five (5) days after Builder receives the response of Owner, Builder may make a final offer to repair, replace or otherwise compensate Owner for the alleged Construction Defect. Section 14. Suspension of Work - Cancelation. Rights to suspend work or cancel this Contract shall be controlled by the following: (a) Suspension of Work. If Owner fails to make any payment due, or fails to comply with any other material obligation under this Contract, Builder at his sole option and without penalty is authorized to suspend work until payment is made and/or Owner has fully complied with the terms of the Contract. (b) Cancelation by Mutual Consent. This Contract may be canceled by mutual consent at any time upon execution of a termination agreement signed by both parties. (c) Cancelation by Builder. In addition to the right to suspend work, if Owner fails to make any payment due, or fails to comply with any other material obligation under this Contract, Builder at his sole option, and unless cured, may cancel the Contract in accordance with the cancelation procedures stated below. (d) Cancelation by Owner. If the Builder fails to supply proper materials or skilled workers, fails to pay for materials, labor or equipment, fails to perform this Contract in a timely manner, or otherwise materially breaches the Contract provisions, Owner at their sole option, and unless cured, may cancel this Contract in accordance with the cancelation procedures stated below. (e) Cancelation Procedures. Owner or Builder will deliver to the other party a written notice of intention to cancel. Such notice will be dated and signed, and will list the specific cause or causes that would justify cancelation. The recipient party will have seven (7) days from the date of the notice (or such additional time as the parties may agree to in writing) to remedy or cure all listed causes that would justify cancellation. Upon the expiration of seven (7) days without remedy or cure, the Contract may be canceled upon delivery to the other party of a written cancellation document. Any cancellation sought by Owner will be contingent on payment in full to the Builder of all costs and expenses incurred as of the date of cancellation, inclusive of change orders. Upon cancelation by the Builder, Owner shall be liable for and shall pay to the Builder all costs and expenses incurred as of the date of cancelation, inclusive of change orders, and liquidated damages (not as a penalty, since both Parties acknowledge that it would be difficult, or impossible to ascertain Builder's damages or losses in the event of Owner's breach of this Contract). (f) Other Default and Remedies. If Builder breaches this Contract for reasons other than those specified above, Owner may, as Owner's sole and exclusive remedy hereunder, submit this matter to binding arbitration in accordance with Section 16, after compliance with Section 13, if applicable. EXCEPT AS PROVIDED HEREIN, IN NO EVENT SHALL Owner OR BUILDER BE LIABLE TO EACH OTHER FOR ANY PUNITIVE, SPECULATIVE, CONSEQUENTIAL SPECIAL, TREBLE, EXEMPLARY, OR OTHER RELATED DAMAGES OF ANY KIND. The prevailing party in any legal proceeding or arbitration based upon this Contract shall be entitled to recover reasonable attorneys' fees, including expenses and court or dispute resolution costs. Section 15. Risk of Loss. All risk of loss to the Property from fire, casualty or other causes shall be on Builder until the earliest of: (a) the transfer of possession of the Property by Builder to Owner, (b) the Closing Date, or (c) any occupancy of the Property by Owner. After the risk of loss is transferred to Owner, Owner shall be responsible for all insurance related to the Property. If casualty by fire or otherwise, occurring prior to Closing, damages more than twenty percent (20%) of the House, then Builder shall have the option to terminate this Contract in writing and return to Owner the Earnest Money and Down Payment without interest. If Builder elects to terminate this Contract and complies with this Section, then Owner shall have no other remedy for Builder's failure to proceed to Closing, and the parties shall each be released from all other obligations that may exist by virtue of this Contract. In the event: (i) the damage exceeds said percentage and the Builder does not give Owner notice of Builder's intent to terminate this Contract as provided above, or (ii) the damage does not exceed said percentage, then Builder shall repair the damage and rebuild the House as soon as reasonably practicable, and the Closing shall be delayed as necessary to allow the completion of such repairs and rebuilding work. Section 16. Arbitration of Disputes. Any and all disputes, controversies, or claims (a "Dispute") of any kind whatsoever between Builder and Owner, including but not limited to, any Disputes arising out of or relating to: (a) this Contract, including the Contract Documents, or the breach of this Contract; or (b) any item under the Warranty (regardless as to whether such item is covered or excluded); or (c) the course of dealing by and between the parties; or (d) the construction of the House, and any alleged defects (including any alleged Construction Defects) relating thereto; or (e) the existence, construction, validity, interpretation or meaning of this Contract; or (f) the performance, non-performance, breach, enforcement, operation, continuance or termination of this Contract; or (g) the substantial completion of the House or Builder's satisfactory completion of the Punch List items, if any; or (h) violation of any law; or (i) all allegations of liability, tortious conduct, fraud, concealment, misrepresentation, negligence, etc. between Builder and Owner, shall be submitted to binding arbitration. The arbitration shall be conducted in accordance with the Construction Industry Rules of the HBA that are in effect at the time of the dispute and in the City where the Property is located. The arbitrator shall employ the construction guidelines contained in the current edition of the Residential Construction Performance Guidelines in determining what constitutes a defect in construction. Arbitrators will be selected in accordance with the Rules and with the mutual consent of Builder and Owner. The determination of the arbitrators as to the resolution of the Dispute shall be binding on both Builder and Owner. The arbitrators shall conduct the arbitration such that a final result, determination, finding, judgment and/or award (the "Final Determination") is made or rendered as soon as practicable. Nothing in this section shall prohibit either Builder or Owner from instituting litigation to enforce any Final Determination. THE PROVISIONS OF THIS SECTION SHALL BE A COMPLETE DEFENSE TO ANY SUIT, ACTION OR PROCEEDING INSTITUTED IN ANY FEDERAL, STATE OR LOCAL COURT OR BEFORE ANY ADMINISTRATIVE TRIBUNAL WITH RESPECT TO ANY CONTROVERSY, DISPUTE OR CLAIM TO BE ARBITRATED IN ACCORDANCE WITH THIS CONTRACT. Notwithstanding the foregoing, nothing contained in this section shall be deemed to limit or restrict Builder’s right to file a materialmens or mechanics lien against the Property or prosecute foreclosure proceedings based on such lien. If Builder files an action to foreclose its lien, the district court may hear and rule only upon issues relating to the validity of the lien filing. All other issues, including without limitation, counterclaims of Owner, shall be held in abeyance by the district court so that such issues may be resolved in binding arbitration. If the arbitrator rules in favor of the Builder, then the Builder may have the arbitrator’s ruling certified as a judgment in the district court and Builder may pursue its in rem rights under the lien. This Section shall survive the Completion and/or the termination of this Contract. Section 17. Broker Commissions. Each party represents and warrants to the other party that there are no claims for brokerage commissions or finder's fees in connection with the Property or this Contract, except as follows: (a) Briley Wall commission at Completion. Further, Owner agrees to indemnify Builder from any other claim for real estate commissions in connection with this Contract. Any commission due will be paid at closing. Section 18. Waiver. Amendments. Entire Agreement. This Contract may be modified or amended or any term of this Contract waived only by a written instrument signed by both Builder and Owner. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect its or their right at a later time to enforce the same. This Contract and the exhibits attached hereto set forth the entire understanding and agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof. Section 19. Assignment. Owner may not assign or transfer Owner's rights or obligations under this Contract without the prior written consent of Builder. Subject to the foregoing, this Contract shall insure to the benefit of and be binding upon only the heirs, personal representatives, successors and assigns of the parties. Section 20. Miscellaneous. Time is of the essence of this Contract. This Contract may be executed in one or more counterparts, each of which will be an original instrument, but all of which will constitute one agreement. Each term, provision, condition, and covenant contained in this Contract shall be jointly and severally binding on each of the Owners. The section headings in this Contract are for reference purposes only and are not intended in any way to describe, interpret, define or limit the scope, extent or intent of this Contract or any part hereof. In case any one or more provisions contained in this Contract will for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision hereof, and this Contract will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. This Contract shall be governed, construed and interpreted in accordance with the laws of the State of Oklahoma. Section 21. Copyrighted Material; Disclaimer. This Contract is copyrighted and may not be reproduced in whole or in part, without the express written consent of the Oklahoma State Home Builders Association. This Contract may be utilized only by members in good standing of the Oklahoma State Home Builders Association (the "Association"). NOTHING CONTAINED IN THIS CONTRACT SHALL BE DEEMED THE RENDERING OF LEGAL ADVICE BY THE ASSOCIATION. Owner AND BUILDER DO HEREBY RELEASE, REMISE AND FOREVER DISCHARGE THE ASSOCIATION, ITS AGENTS, EMPLOYEES, ASSIGNS AND REPRESENTATIVES OF AND FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, CONTROVERSIES OR CAUSES OF ACTION, OF WHATSOEVER NATURE, IN LAW OR IN EQUITY, WHETHER KNOWN OR UNKNOWN, WHICH Owner OR SELLER HAVE OR MAY HAVE ARISING OUT OF OR RELATED TO THIS CONTRACT OR ANY PROVISIONS THEREOF BY BUILDER AND Owner. Owner and Builder are encouraged to seek independent legal advice before executing this Contract. Section 22. Notice. All notices or other communications which may be or are required to be given under this Contract to any party hereto shall be in writing and be (a) delivered in person to such party or to an officer or agent of such party; (b) sent by fax; (c) sent by a recognized overnight courier service, such as Federal Express; (d) sent by United States Postal Service certified mail, postage prepaid, return receipt requested, to such party: BUILDER: Brett Davis Name : The Birch Company Address : 11911 S Oxford Ave Suite 100 Tulsa OK, 74137 Fax : Phone : 918.982.3120 Email : [email protected] Owner: Patrick Benoit Kelli Lene Yearwood Name : Patrick Benoit Address : [REDACTED] Phone : [REDACTED] Email : [REDACTED] Such Notice or other communication shall be deemed to have been given, delivered and received upon the earlier of: (i) on the third (3rd) day after mailing, or (ii) the date of actual receipt. Section 23. List of Exhibits. The following exhibits are attached to this Contract and incorporated into this Contract by reference: Section 24. BuilderTrend- (Communication): Upon final signing of this contract the medium in which communication between the Owner and Builder will solely be through the management software titled "BuilderTrend." Phone calls, Text messages and Emails are not considered valid communication and will not be followed up on. In case of an emergency our main office line is available at 918-764-8869. All selections, documents and correspondence through "BuilderTrend" will be used to construct the home inclusively. Section 25. Special Provisions. Owner is carrying financing and this is a Cost Plus 15% Contract IN WITNESS WHEREOF, the parties have executed this Contract as of the date first set forth above. Owner: Patrick Benoit Kelli Lee Yeakwood Name: Name: BUILDER : By: Brett Davis Brett, Davis The Birch Company an Oklahoma limited liability company BIRCH CO. PAINT WARRANTY The Birch Co. Does not warranty paint related items after closing. Once the homeowner closes it falls solely on their responsibility to maintain the paint integrity. Please read and follow the guidelines set forth in the HBA warranty guidebook. However, if you would like to add the 1 time paint touch up warranty to your experience please do so at this time by selecting below. If you selected Yes, you will need to write a check or provide cash in the amount for $1,000. If you select No, then we will proceed as normal. YES NO ______________________________ ______________________________ Patrick Beavit Brett Davis ( Owner's Signature ) ( Builder's Signature ) Date 11-02-2022 Date 11-02-2022 Patrick 'Chaos' Benoit rated 4.1 stars based on 9 reviews ★★★★ Ownership changed and so did their quality. I do not recommend them. They did not manage project costs nor did they manage scope changes. They made commitments that were not kept and they misrepresented timelines and status often. Services Home building