HOME IMPROVEMENT CONTRACT
1. Scope of Agreement.
(a) General. Contractor will provide the Improvements to Owner on the terms set forth herein and as described in the Home Improvement Contract. Payment requirements are set forth on Exhibit “A” to this contract.
(b) Change Orders/Additions. Contractor shall not be obligated to make changes in or additions to the Improvements or provide additional services not in the original scope of this Agreement unless Contractor and Owner first agree in writing as to: (i) the scope of such change; (ii) the number of additional days, if necessary, to be added to Contractor’s completion date; and (iii) the adjustment to the cost of the work, if any, resulting from such change. Upon the execution of a change in or addition to the Improvements, the revised Improvements shall be the Improvements hereunder. No extra or change order work may be required to be performed without prior written authorization of Owner. Any change order forms for changes or extra work shall be incorporated in, and become a part of, this Agreement. Failure to comply with the requirements of this subdivision does not preclude the recovery of compensation for work performed based upon quasi contract, quantum meruit, restitution, or other similar legal or equitable remedies designed to prevent unjust enrichment.
(c) Permits. Contractor has determined that the Improvements will or will not be required, as reflected in the Home Improvement Contract. If permits are required, Owner is responsible for obtaining all required permits and the fees for such permits. Commencement of work will not occur until all required permits are issued.
(d) Unforeseen Conditions. Should Contractor, in the performance of its work, encounter concealed conditions which are at variance with conditions previously indicated by Owner or in the Scope of Work, or which differ materially from those ordinarily encountered or reasonably anticipated, Contractor shall be reimbursed for all additional expenses related thereto, plus a reasonable profit, and the time of completion shall be extended accordingly. Contractor will issue a change order as soon after such work as can reasonably be done.
2. Obligations of Contractor.
(a) Performance Standard. Subject to the terms and conditions of this Agreement, Contractor will perform or supply the Improvements for the price in a professional and workmanlike manner consistent with industry standards therefor.
(b) APPROXIMATE START DATE; APPROXIMATE COMPLETION DATE. Subject to the requisite permits in the Scope of Work, the approximate date work will begin and the approximate date work will be complete is as set forth in the Home Improvement Contract. Such date is automatically extended based upon delays resulting from delays in the issuance of permits, the inability to obtain materials specified by Owner, loss of utilities or any other delays caused by Owner or causes beyond the reasonable control of Contractor, including, without limitation, failure of performance of suppliers or subcontractors.
3. Obligations of Owner.
Owner shall pay to Contractor the cost the Improvements as provided in the Payment Provisions. Owner acknowledges that this Agreement does not provide for any retention on progress payments. No offset, back-charge, or deduction of any kind shall be withheld from any payment unless the amount thereof has been specifically agreed to in writing beforehand by Owner and an officer of Contractor. Any claim of such nature subject to dispute shall be resolved by binding arbitration as set forth herein. Owner shall provide all such access to the facilities or area to be serviced and such water and electrical supply as may be reasonably necessary or specified, all necessary temporary site facilities and service. Owner shall prepare all work areas so as to be acceptable for Contractor’s work. As each progress payment is made according to the Payment Provisions herein, and before any further payment is made, Contractor shall furnish to Owner full releases of any claim of mechanics’ liens for the portions of the work for which payments are and have been made. Each release must comply with California Civil Code Section 3262 and be signed by all subcontractors, sub-subcontractors, material suppliers and others that have performed work on or furnished equipment or materials to the project. No further payment will be made to Contractor until Contractor furnishes releases that comply with these requirements.
4. Suspension or Termination.
(a) Suspension. Contractor may suspend or terminate any services upon three (3) days prior written notice to Owner in the event Owner is in breach of this Agreement. Nothing herein shall prejudice any other remedy which Contractor may have as a result of Owner’s breach.
(b) Termination for Cause. Either party may terminate this Agreement by written notice in the event the other party is in material breach hereof and such breach has not been cured within ten (10) days following written notice of such breach to the party in breach.
Acceptance of Contractor’s performance by Owner shall constitute a waiver of any claim for damages on account of any delay. If delay is caused in whole or in part by Owner, Contractor shall be reimbursed for all expenses related thereto, plus a reasonable profit. No penalty or liquidated damages for delay shall be imposed upon Contractor unless specifically provided for herein.
(a) Limited Warranty. Contractor warrants for a period of one (1) year following completion of installation that the completed work will be free of material defects workmanship. Notwithstanding the foregoing, Contractor makes no warranty with respect to materials. The sole warranty with respect to materials supplied shall be any applicable manufacturer’s warranties.
(b) Exclusive Remedy. In the event of a breach of such warranty, the sole remedy of Owner and the sole liability of Contractor shall be, at Contractor’s election, to provide replacement services or to refund the payments of Owner for the work.
(c) General Limitation. EXCEPT AS PROVIDED HEREIN, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY CONTRACTOR OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANT¬ABILITY OR FITNESS FOR PARTICULAR PURPOSE OR OF ERROR-FREE AND UNINTERRUPTED USE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
(d) Specific Limitations. Contractor makes no representations or warranties with respect to the work of other contractors or subcontractors performing services at the Home at the direction of the Owner. No claim for compensation for errors or defects in material or workman¬ship will be allowed against Contractor unless Contractor is given timely notice in writing of such alleged defect or error, so as to afford it the opportunity to investigate, inspect and correct same. All warranties shall be void in the event of any alteration of the work by Owner.
7. Limitation on Liability.
(a) Force Majeure. Except for payment obligations, neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations, labor strikes or difficulties, transportation stoppages or slowdowns or the inability to procure parts or materials. If any of these causes continues to prevent or delay performance for more than ninety (90) days, the affected party may terminate this Agreement, in whole or in part, effective immediately upon notice to the other party.
(b) No Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEE¬ABLE, BASED ON CLAIMS OF THE OTHER PARTY OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. WITHOUT LIMITING THE FOREGOING, CONTRACTOR’S MAXIMUM LIABILITY HEREUNDER SHALL NOT EXCEED THE COST OF THE WORK.
(a) Contractor Indemnity. Subject to the limitations set forth in this Agreement, Contractor shall indemnify, defend and hold Owner harmless from any and all claims, liability, costs, damages and expenses, (i) for any damage to the Home resulting from the negligence of Contractor or its subcontractors and (ii) for such matters as are covered, and to the extent covered, by the “Insurance” as defined below. Contractor shall have no obligation to defend Owner except to the extent of Contractor’s Insurance.
(b) Owner Indemnity. Owner shall indemnify, defend and hold Contractor harmless from any and all claims, liability, costs, damages and expenses, including without limitation attorneys’ fees, arising out of or relating to the negligence of Owner, any of Owner’s agents or any contractors retained by Owner to perform services at the Home or otherwise.
Arbitration of Disputes; Attorneys Fees. If any sums due to Contractor are not paid when due, interest shall accrue thereon at the rate of 1.5% per month until paid in full. Any action to enforce this Agreement shall be brought in the California Superior Court where the Home is located and the parties consent to jurisdiction and venue in such County. In any action or proceeding to enforce or construe this Agreement, the prevailing party shall be entitled to recover their actual attorney’s fees and costs.
10. Notices to Owner.
Certain notices to Owner are attached hereto and incorporated herein by reference as Exhibit “B.” Additionally, in the event this Agreement is executed at a place other than Contractor’s business premises, attached hereto and incorporated herein by this reference as Exhibit “C” is a “Notice of Cancellation.”
MIKE COUNSIL PLUMBING, INC.
Dated: ______________, 2017
signature __________________________________ Print __________________________________
(Authorized Representative of Mike Counsil Plumbing No. 679261)
Dated: ______________, 2017
signature __________________________________ Print __________________________________
LIST OF DOCUMENTS TO BE INCORPORATED INTO THIS AGREEMENT: A PAYMENT PROVISIONS B NOTICES TO OWNER C THREE DAY RIGHT TO CANCEL (if applicable)
The down payment may not exceed $1,000.00 or ten percent (10%) of the contract price, whichever is less.
Schedule of Progress Payments.
1. Total Contract Price $________________
2. Down Payment (10% or $1,000, whichever is less) $________________
3. Amount remaining to be billed to Customer $________________
Work or Service Performed Amount Due on
4. ____________________________________________ $_________________
5. ____________________________________________ $_________________
6. ____________________________________________ $_________________
7. ____________________________________________ $_________________
8. ____________________________________________ $_________________
9. ____________________________________________ $_________________
10. ____________________________________________ $_________________
11. Amount of Progress Payments $_________________
The schedule of progress payments must specifically describe each phase of work, including the type and amount of work or services scheduled to be supplied in each phase, along with the amount of each proposed progress payment. IT IS AGAINST THE LAW FOR A CONTRACTOR TO COLLECT PAYMENT FOR WORK NOT YET COMPLETED, OR FOR MATERIALS NOT YET DELIVERED. HOWEVER, A CONTRACTOR MAY REQUIRE A DOWN PAYMENT.
NOTICES TO OWNER
A. LICENSED CONTRACTOR. Contractors are required by law to be licensed and regulated by the contractors’ state license board. Any questions concerning a contractor may be referred to the registrar of the board whose address is: Contractors’ State License Board, 9821 Business Park Drive, Sacramento, California 95827.
B. COPY OF CONTRACT. You are entitled to a completely filled in copy of this Agreement, signed by both you and the contractor, before any work may be started.
C. COMMERCIAL GENERAL LIABILITY INSURANCE (check one). [__________] This contractor does not carry commercial general liability insurance. [______X____] This contractor carries commercial general liability insurance written by _Bozzuto Insurance_. You may call _408-680-0200_____ to check the contractor’s insurance coverage. [__________] This contractor is self insured.
D. WORKERS’ COMPENSATION INSURANCE (check one). [___x_____] This contractor carries workers’ compensation insurance for all employees. [__________] This contractor has no employees and is exempt from workers’ compensation requirements.
E. PERFORMANCE OF EXTRA OR CHANGE-ORDER WORK NOTICE. NOTE ABOUT EXTRA WORK AND CHANGE ORDERS. “Extra Work” and “Change Orders” become part of the Contract once the order is prepared in writing and signed by the parties prior to the commencement of any work covered by the new change order. The order must describe the scope of the extra work or change, the cost to be added or subtracted from the contract, and the effect the order will have on the schedule of progress payments. A contractor is not required to perform additional work or changes without written approval in a “Change Order” before any of the new work is started. Extra work or a change order is not enforceable against a buyer unless the change order also identifies all of the following in writing prior to the commencement of any work covered by the new change order:
(i) The scope of work encompassed by the order. (ii) The amount to be added or subtracted from the contract. (iii) The effect the order will make in the progress payments or the completion date.
The contractor’s failure to comply with the requirements of this paragraph does not preclude the recovery of compensation for work performed based upon legal or equitable remedies designed to prevent unjust enrichment.
Even if you pay your contractor in full, unpaid subcontractors, suppliers, and laborers who helped to improve your property may record mechanics’ liens and sue you in court to foreclose the lien. If a court finds the lien is valid, you could be forced to pay twice or have a court officer sell your home to pay the lien. Liens can also affect your credit.
To preserve their right to record a lien, each subcontractor and material supplier must provide you with a document called a ‘20-day Preliminary Notice.’ This notice is not a lien. The purpose of the notice is to let you know that the person who sends you the notice has the right to record a lien on your property if he or she is not paid.
I. INFORMATION ABOUT THE CONTRACTORS STATE LICENSE BOARD (CSLB). CSLB is the state consumer protection agency that licenses and regulates construction contractors. Contact CSLB for information about the licensed contractor you are considering, including information about disclosable complaints, disciplinary actions and civil judgments that are reported to CSLB. Use only licensed contractors. If you file a complaint against a licensed contractor within the legal deadline (usually four years), CSLB has authority to investigate the complaint. If you use an unlicensed contractor, CSLB may not be able to help you resolve your complaint. Your only remedy may be in civil court, and you may be liable for damages arising out of any injuries to the unlicensed contract or the unlicensed contractor’s employees.
For more information:
VISIT CSLB’s website at www.cslb.ca.gov CALL CSLB at 1-800-321-CSLB (2752) WRITE CSLB at P.O. Box 26000, Sacramento, CA 95826
THREE-DAY RIGHT TO CANCEL
You, the buyer, have the right to cancel this Contract within three business days. You may cancel by emailing, mailing, faxing, or delivering a written notice to the Contractor at the Contractor’s place of business by midnight of the third business day after you received a signed and dated copy of the contract that includes this notice. Include your name, your address, and the date you received the signed copy of the contract and this notice.
If you cancel, the Contractor must return to you anything you paid within 10 days of receiving the notice of cancellation. For your part, you must make available to the Contractor at your residence, in substantially as good condition as you received it, any goods delivered to you under this contract or sale. Or, your may, if you wish, comply with the Contractor’s instructions on how to return the goods at the contractor’s expense and risk. If you do make the good available to the Contractor and the Contractor does not pick them up within 20 days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the Contractor, or if you agree to return the goods to the Contractor and fail to do so, then you remain liable for performance of all obligations under the contract.
NOTICE OF RIGHT TO CANCEL Notice of Cancellation ______________________________ (Enter date of transaction)
You may cancel this transaction, without any penalty or obligation, within three business days from the above date.
If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten (10) days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale, or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within 20 days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation.
If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy of the cancellation notice, or any other written notice, or send a telegram to:
MIKE COUNSIL PLUMBING, INC. (Name of Seller)
At: 1915 O’TOOLE WAY, SAN JOSE, CALIFORNIA 95131 (Address of Seller’s place of business)
Not later than midnight of ___________________ (Date)
I hereby cancel this transaction _______________ (Date)