1. Payment Terms. No credits or adjustments to the contract price shall be made unless mutually agreed upon by Contractor and Owner. Overdue payments will bear interest at 1½ % per month, or the maximum legally permissible rate, whichever is less.
2. Indemnification. The Owner shall indemnify and hold Contractor harmless from all claims arising out of the activities under this Agreement, except for claims due to the sole negligence or wrongful act of Contractor.
3. Labor and Material. Contractor shall pay all valid charges for labor and material incurred by Contractor and used in the project, but is excused by owner from this obligation for bills received in any period during which owner is in arrears in making progress payments to Contractor. Should Contractor fail to make any payments required under this paragraph, owner may make such payments on behalf of Contractor; Contractor shall reimburse owner for the amount actually paid on demand; but owner shall not, by means of assignment or otherwise, be entitled to collect any greater amount from Contractor than the amount actually paid for labor or material under this paragraph. No waiver or release of mechanic’s lien given by Contractor shall be binding until all payments due to Contractor when the release was executed have actually been made.
4. Hazardous Materials. In the event Contractor encounters on the jobsite lead-based paint or any other hazardous material such as, but not limited to, asbestos or polychlorinated biphenyl (PCB) for which the Contractor has not been notified in writing prior to entering into this Agreement, the Contractor shall immediately stop work and shall not be responsible for the testing, removal, disposal, or rendering harmless of such material. Owner agrees to hold the Contractor harmless as to any liability resulting from such material. Any additional cost, including overhead and profit, caused by these conditions shall be reimbursed to the Contractor as extra work.
5. Additional Work. Should Owner, construction lender or any public body or inspector direct any modification or addition to the work covered by this Agreement, or should any additional work be necessary due to unforeseen conditions, the cost of such work shall be added to the contract price. Contractor shall be compensated for any such work at Contractor’s current rates for labor and materials. Changes in the Agreement shall be evidenced by a writing signed by both parties. Expenses incurred because of unusual or unforeseen conditions, including additional expense due to delays and extension of time to complete work, shall be paid for by Owner as additional work. No additional or change order work shall be required to be performed without prior written authorization of the Owner. Any change order forms for changes or additional work shall be incorporated in, and become a part of the Agreement.
6. Delay. Contractor shall be excused for any delay in completion of the Agreement caused by acts of God, acts of owner or owner’s agent, stormy weather, labor trouble, acts of public utilities, public bodies or inspectors, extra work, failure of owner to make progress payments promptly, or other contingencies unforeseen by Contractor and beyond the reasonable control of Contractor. At the time of commencement or after the commencement of work, if there occurs a delay which is not the fault of the Contractor and which requires the Contractor to cease work and restart at a later time, Contractor shall be entitled to a charge for the actual cost of demobilizing and remobilizing its work crew.
7. Existing Colors and Textures. Where the project includes matching existing paint and finish colors and textures, the Contractor cannot guarantee exact matches to such colors and textures.
8. Site Conditions. Owner represents that existing soils, structures, walks, driveways, roofs, and other site conditions are suitable for the work to be performed and will support Contractor’s materials, laborers, equipment and vehicles and those of its Subcontractors and Suppliers. Contractor has made no examination beneath the surfaces of the premises prior to execution of this Agreement and, except as expressly included in the Specifications and Scope of Work, Contractor shall not be responsible for the presence of or correction of unusual or unforeseen site conditions including, but not limited to, violations of building codes or regulations, dry rot, termite damage, existing coating failure due to improper prior preparation work, or other similar conditions. If Contractor encounters unusual or unforeseen site conditions, Contractor may continue with other work or stop work and will notify Owner and, if mutually agreed, the parties will execute a Change Order relative to these conditions.
9. Preexisting Defects or Damage. Contractor shall not be held responsible for existing defects or damage to the job site, such as cracked driveways, scratched glass, rusted fixtures, or damages from prior leaks or repairs.
10. Damage to Hardware, Fixtures and Roofing Materials. Contractor shall not be responsible for damages to existing hardware and fixtures that are removed as part of the project, nor to roofing materials (including tiles) unless such damage occurs due to the negligence or wrongful act of Contractor.
11. Utilities. The Owner is responsible for providing, at Owner’s expense, electricity, gas and water to the site as needed by the Contractor.
12. Access to Property. Contractor shall be given free and complete access to all areas necessary for the performance of work. Owner agrees to keep driveway clear and available for movement and parking of trucks and other equipment during normal working hours. Owner shall secure permission to work on or over adjoining property at no cost to Contractor, if necessary. Owner shall furnish, at no cost to Contractor, an appropriate space on the premises in which to store materials and equipment during the course of work.
13. Owner’s Personal Property. To the extent that the Owner does not remove furnishings or items of personal property, Contractor shall use reasonable care to move or protect such items. However, Contractor shall not be responsible for any damage to such items unless such damage occurs due to the gross negligence of Contractor.
14. Landscaping. If the project involves exterior painting, some damage to lawns, shrubs and other landscaping may occur due to use of ladders, overspray, etc. Contractor shall use reasonable care to avoid damaging landscaping, but shall not be responsible for any damage to landscaping unless such damage occurs due to the gross negligence of Contractor.
15. Damage to Project. If the project is destroyed or damaged by an accident, disaster or calamity, such as fire, storm, flood, landslide, subsidence or earthquake, or by theft or vandalism, any work done by Contractor in rebuilding or restoring the project shall be paid for by Owner as additional work.
16. Right to Stop Work. Contractor shall have the right to stop work if any payment shall not be made to Contractor under this agreement; Contractor may keep the job idle until all payments due are received.
17. Limitations. No action arising from or related to the agreement, or the performance thereof, shall be commenced by either party against the other more than two years after the completion or cessation of work under this contract unless covered by the warranty set forth herein. This limitation applies to all actions of any character, whether at law or in equity, and whether sounding in contract, tort or otherwise. This limitation shall not be extended by any negligent misrepresentation or unintentional concealment, but shall be extended as provided by law for willful fraud, concealment or misrepresentation.
18. Consequential Damages. Contractor shall not be liable for incidental or consequential damages (such as damage or loss of use of the building and its contents, loss of time and inconvenience) arising out of the work to be performed under this agreement or any claimed breach of this agreement.
19. Attorney Fees. If either party becomes involved in litigation arising out of this contract or the performance thereof, the court in such litigation, or in a separate suit, shall award reasonable costs and expenses, including attorney fees, to the prevailing party. In awarding attorney fees, the court will not be bound by any court fee schedule; but shall, if it is in the interest of justice to do so, award the full amount of costs, expenses and attorney fees paid or incurred in good faith.
20. CleanUp. Upon completion of the work, Contractor will remove debris and surplus material from owner’s property and leave it in a neat and broom-clean condition.
21. Standards. All applicable standards adopted by the Painting and Decorating Contractors of America shall be incorporated into this Agreement.
22. Warranty. There are no warranties, express or implied, except as set forth in this agreement and attached hereto.
23. Notice. Contractors are required by law to be licensed and regulated by the Contractor’s State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to any structural defects must be filed within 10 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractor’s State License Board, PO Box 26000, Sacramento, California 95826. Failure by the Contractor without lawful excuse to substantially commence work within 20 days of the approximate start date specified in the Schedule section of this Agreement is a violation of Contractors State License Law.
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