03-0205_MR. MOBILE HOME_Construction ContractCONSTRUCTION CONTRACT
THIS CONTRACT is made and entered into, to be effective, this S day of ,
2003, by and between the CITY OF SAN JUAN CAPISTRANO, hereinafter referred to as "City,"
and MR. MOBILE HOME, hereinafter referred to as "Contractor."
City and Contractor mutually agree as follows:
Section 1. General Conditions.
Contractor certifies and agrees that all the terms, conditions and obligations of the
Contract Documents as hereinafter defined, the location of the job site, and the conditions under
which the work is to be performed have been thoroughly reviewed, and enters into this Contract
based upon Contractor's investigation of all such matters and is in no way relying upon any
opinions or representations of City. It is agreed that this Contract represents the entire
agreement between the parties. It is further agreed that the Contract Documents including the
Notice Inviting Bids, Special Instructions to Bidders, if any, and Contractor's Proposal, are
incorporated in this Contract by reference, with the same force and effect as if the same were
set forth at length herein, and that Contractor and its subcontractors, if any, will be and are
bound by any and all of said Contract Documents insofar as they relate in any part or in any
way, directly or indirectly, to the work covered by this Contract.
"Project" as used herein defines the entire scope of the work covered by all the Contract
Documents. Anything mentioned in the Specifications and not indicated in the Plans, or
indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if
indicated and mentioned in both. In case of discrepancy in the Plans or Specifications, the
matter shall be immediately submitted to City's Engineer, without whose decision Contractor
shall not adjust said discrepancy save only at Contractor's own risk and expense. The decision
of the Engineer shall be final.
Section 2. Materials and Labor.
Contractor shall furnish, under the conditions expressed in the Plans and Specifications,
at Contractor's own expense, all labor and materials necessary, except such as are mentioned
in the Specifications to be furnished by the City, to construct and complete the Project, in good
workmanlike and substantial order. If Contractor fails to pay for labor or materials when due,
City may settle such claims by making demand upon the surety to this Contract. In the event of
the failure or refusal of the surety to satisfy said claims, City may settle them directly and deduct
the amount of payments from the Contract price and any amounts due to Contractor. In the
event City receives a stop notice from any laborer or material supplier alleging non-payment by
Contractor, City shall be entitled to deduct all of its costs and expenses incurred relating thereto,
including but not limited to administrative and legal fees.
Section 3. Description of Proiect.
The Project is described as: repairs and improvements to the Public Works trailer. Work
to include: removal and replacement of siding and all appurtenant work.
Section 4. Plans and Specifications.
The work to be done is shown in Contractor's proposal dated December 18, 2002,
attached hereto and incorporated herein as part of this Contract and referred to as Exhibit "A".
Section 5. Time of Commencement and Completion.
Contractor agrees to commence the Project within ten (10) calendar days from the date
set forth in the "Notice to Proceed" sent by City and shall diligently prosecute the work to
completion within ninety (90) calendar days from the date of the "Notice to Proceed" issued by
the City excluding delays caused or authorized by the City as set forth in Sections 7, 8 and 9
hereof.
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Section 6. Time is of the Essence.
Time is of the essence of this Contract. As required by the Contract Documents,
Contractor shall prepare and obtain approval of all shop drawings, details and samples, and do
all other things necessary and incidental to the prosecution of Contractor's work in conformance
with an approved construction progress schedule. Contractor shall coordinate the work covered
by this Contract with that of all other Contractors, subcontractors and of the City, in a manner
that will facilitate the efficient completion of the entire work in accordance with Section 5 herein.
City shall have complete control of the premises on which the work is to be performed and shall
have the right to decide the time or order in which the various portions of the work shall be
installed or the priority of the work of other subcontractors, and, in general, all matters
representing the timely and orderly conduct of the work of Contractor on the premises.
Section 7. Excusable Delays.
Contractor shall be excused for any delay in the prosecution or completion of the Project
caused by acts of God; inclement weather which exceeds the number of calendar days
estimated by the City and set forth in Section 5 hereof; damages caused by fire or other
casualty for which Contractor is not responsible; any act, neglect or default of City; failure of City
to make timely payments to Contractor; late delivery of materials required by this Contract to be
furnished by City; combined action of the workers in no way caused by or resulting from default
or collusion on the part of Contractor; a lockout by City; or any other delays unforeseen by
Contractor and beyond Contractor's reasonable control.
City shall extend the time fixed in Section 5 for completion of the Project by the number of
days Contractor has thus been delayed, provided that Contractor presents a written request to
City for such time extension within fifteen (15) days of the commencement of such delay and
City finds that the delay is justified. City's decision will be conclusive on the parties to this
Contract. Failure to file such request within the time allowed shall be deemed a waiver of the
claim by Contractor.
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No claims by Contractor for additional compensation or damages for delays will be
allowed unless Contractor satisfies City that such delays were unavoidable and not the result of
any action or inaction of Contractor and that Contractor took all available measures to mitigate
such damages. Extensions of time and extra compensation as a result of incurring undisclosed
utilities will be determined in accordance with Section C -9(f) of the General Provisions. The
City's decision will be conclusive on all parties to this Contract.
Section 8. Extra Work.
The Contract price includes compensation for all work performed by Contractor, unless
Contractor obtains a written change order signed by a designated representative of City
specifying the exact nature of the extra work and the amount of extra compensation to be paid
all as more particularly set forth in Section 9 hereof.
City shall extend the time fixed in Section 5 for completion of the Project by the number of
days reasonably required for Contractor to perform the extra work, as determined by City's
Engineer. The decision of the Engineer shall be final.
Section 9. Changes in Project.
A. City may at any time, without notice to any surety, by written order designated or
indicated to be a change order, make any change in the work within the general scope of the
Contract, including but not limited to changes:
1) in the Specifications (including drawings and designs);
2) in the time, method or manner of performance of the work;
3) in the City -furnished facilities, equipment, materials, services or site; or
4) directing acceleration in the performance of the work.
B A change order shall also be any other written order (including direction,
instruction, interpretation or determination) from the City which causes any change, provided
Contractor gives the City written notice stating the date, circumstances and source of the order
and that Contractor regards the order as a change order.
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C. Except as provided in this Section 9, no order, statement or conduct of the City or
its representatives shall be treated as a change under this Section 9 or entitle Contractor to an
equitable adjustment.
D. If any change under this Section 9 causes an increase or decrease in Contractor's
actual, direct cost or the time required to perform any part of the work under this Contract,
whether or not changed by any order, the City shall make an equitable adjustment and modify
the Contract in writing. Except for claims based on defective specifications, no claim for any
change under paragraph (B) above shall be allowed for any costs incurred more than twenty
(20) days before the Contractor gives written notice as required in paragraph (B). In the case of
defective specifications for which the City is responsible, the equitable adjustment shall include
any increased direct cost Contractor reasonably incurred in attempting to comply with those
defective specifications.
E. If Contractor intends to assert a claim for an equitable adjustment under this
Section 9, it must, within thirty (30) days after receipt of a written change order under paragraph
(A) or the furnishing of a written notice under paragraph (B), submit a written statement to the
City setting forth the general nature and monetary extent of such claim. The City may extend
the thirty (30) day period. Contractor may include the statement of claim in the notice under
paragraph (B) of this Section 9.
F. No claim by Contractor for an equitable adjustment shall be allowed if made after
final payment under this Agreement.
G. Contractor hereby agrees to make any and all changes, furnish the materials and
perform the work that City may require without nullifying this Contract. Contractor shall adhere
strictly to the Plans and Specifications unless a change therefrom is authorized in writing by the
City. Under no condition shall Contractor make any changes to the Project, either in additions
or deductions, without the written order of the City and the City shall not pay for any extra
charges made by Contractor that have not been agreed upon in advance in writing by the City.
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Contractor shall submit immediately to the City written copies of its firm's cost or credit proposal
for change in the work. Disputed work shall be performed as ordered in writing by the City and
the proper cost or credit breakdowns therefore shall be submitted without delay by Contractor to
City.
Section 10. Liquidated Damages for Delay.
The parties agree that if the total work called for under this Contract, in all parts and
requirements, is not completed within the time specified in Section 5 plus the allowance made
for delays or extensions authorized under Sections 7, 8 and 9, the City will sustain damage,
which would be extremely difficult and impracticable to ascertain. The parties therefore agree
that Contractor will pay to City the sum of Two Hundred and Fifty Dollars and No Cents
($250.00) per day, as liquidated damages, and not as a penalty, for each and every calendar
day during which completion of the Project is so delayed.
Contractor agrees to pay such liquidated damages and further agrees that City may
offset the amount of liquidated damages from any monies due or that may become due
Contractor under this Contract.
Section 11. Contract Price and Method of Payment.
City agrees to pay and Contractor agrees to accept as full consideration for the faithful
performance of this Contract, subject to any subsequent additions or deductions as provided in
approved change orders, the sum of twenty-two thousand two hundred twenty-seven Dollars
and fifty-four cents ($22,227.54) as itemized on the attached Exhibit "A."
Within thirty (30) days from the commencement of work, there shall be paid to the
Contractor a sum equal to ninety percent (90%) of the value of the actual work completed plus a
like percentage of the value of material suitably stored at the worksite, treatment plant or
approved storage yards subject to or under the control of the City, since the commencement of
the work as determined by the City. Thereafter, on a schedule issued by the City at the
commencement of the job which shows a minimum of one payment made to the Contractor per
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month for each successive month as the work progresses and the request for payment due
dates from the Contractor to meet the payment schedule, the Contractor shall be paid such sum
as will bring the total payments received since the commencement of the work up to ninety
percent (90%) of the value of the work completed since the commencement of work as
determined by the City, less all previous payments, provided that the Contractor submits the
request for payment prior to the end of the day required to meet the payment schedule. The
City will retain ten percent (10%) of the amount of each such progress estimate and material
cost until the Final Payment.
Payments shall be made on demands drawn in the manner required by law,
accompanied by a certificate signed by the City's Engineer, stating that the work for which
payment is demanded has been performed in accordance with the terms of the Contract, and
that the amount stated in the certificate is due under the terms of the Contract. Partial payments
on the Contract price shall not be considered as an acceptance of any part of the work.
Section 12. Substitution of Securities in Lieu of Retention of Funds.
Pursuant to Public Contract Code Section 22300 et seq., the Contractor will be entitled to
post approved securities with the City or an approved financial institution in order to have the
City release funds retained by the City to insure performance of the Contract. Contractor shall
be required to execute an addendum to this Contract together with escrow instructions and any
other documents in order to effect this substitution.
Section 13. Completion.
Within ten (10) days after the contract completion date of the Project, Contractor shall file
with the City's Engineer its affidavit stating that all workers and persons employed, all firms
supplying materials, and all subcontractors upon the Project have been paid in full, and that
there are no claims outstanding against the Project for either labor or material, except those
certain items, if any, to be set forth in an affidavit covering disputed claims, or items in
connection with Stop Notices which have been filed under the provisions of the statutes of the
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State of California. City may require affidavits or certificates of payment and/or releases from
any subcontractor, laborer or material supplier.
Section 14. Contractor's Employees' Compensation.
A. Davis -Bacon Act:
Contractor will pay and will require all subcontractors to pay all employees on said
Project a salary or wage at least equal to the prevailing rate of per diem wages as determined
by the Secretary of Labor in accordance with the Davis -Bacon Act for each craft or type of
worker needed to perform the Contract.
The provisions of the Davis -Bacon Act shall apply only if the Contract is in excess of Two
Thousand Dollars ($2,000.00) or when twenty-five percent (25%) or more of the Contract is
funded by federal assistance. If the aforesaid conditions are met, a copy of the provisions of the
Davis -Bacon Act to be complied with are incorporated herein as a part of this Contract and
referred to by reference.
B. General Prevailing Rate:
City has ascertained from the State of California Director of Industrial Relations the
general prevailing rate of per diem wages and the general prevailing rate for legal holiday and
overtime work in the locality in which the work is to be performed for each craft or type of work
needed to execute this Contract, and copies of the same are on file in the Office of the Engineer
of City. The Contractor agrees that not less than said prevailing rates shall be paid to workers
employed on this public works contract as required by Labor Code Section 1774 of the State of
California.
C. Forfeiture For Violation:
Contractor shall, as a penalty to the City, forfeit Fifty Dollars ($50.00) for each calendar
day or portion thereof for each worker paid (either by the Contractor or any subcontractor under
it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations,
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in accordance with Sections 1770-1780 of the California Labor Code for the work provided for in
this Contract, all in accordance with Section 1775 of the Labor Code of the State of California.
D. Travel and Subsistence Pay:
Section 1773.8 of the Labor Code of the State of California, regarding the payment of
travel and subsistence payments, is applicable to this Contract and Contractor shall comply
therewith.
E. Apprentices:
Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California,
regarding the employment of apprentices, is applicable to this Contract and the Contractor shall
comply therewith if the prime contract involves Thirty Thousand Dollars ($30,000.00) or more or
twenty (20) working days, or more; or if contracts of specialty Contractors not bidding for work
through the general or prime Contractor are Two Thousand Dollars ($2,000.00) or more or five
(5) working days or more.
F. Workday:
In the performance of this Contract, not more than eight (8) hours shall constitute a day's
work, and Contractor shall not require more than eight (8) hours of labor in a day from any
person employed by him hereunder except as provided in paragraph (B) above. Contractor
shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et se of the Labor Code of the
State of California and shall forfeit to the City as a penalty, the sum of Twenty-five Dollars
($25.00) for each worker employed in the execution of this Contract by Contractor or any
subcontractor for each calendar day during which any worker is required or permitted to labor
more than eight (8) hours in any one calendar day and forty (40) hours in any one week in
violation of said Article. Contractor shall keep an accurate record showing the name and actual
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hours worked each calendar day and each calendar week by each worker employed by
Contractor in connection with the Project.
G. Record of Wages: Inspection:
Contractor agrees to maintain accurate payroll records showing the name, address,
social security number, work classification, straight -time and overtime hours worked each day
and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other
employee employed by it in connection with the Project and agrees to require that each of its
subcontractors does the same. All payroll records shall be certified as accurate by the
applicable Contractor or subcontractor or its agent having authority over such matters.
Contractor further agrees that its payroll records and those of its subcontractors shall be
available to the employee or employee's representative, the Division of Labor Standards
Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the
provisions of Labor Code Section 1776, in general.
Section 15. Surety Bonds.
Contractor shall, before entering upon the performance of this Contract, furnish bonds
approved by the City Counsel -- one in the amount of one hundred percent (100%) of the
Contract price bid, to guarantee the faithful performance of the work, and the other in the
amount of one hundred percent (100%) of the Contract price bid to guarantee payment of all
claims for labor and materials furnished. This Contract shall not become effective until such
bonds are supplied to and approved by the City.
Section 16. Insurance.
A. Contractor is also aware of the provisions of Section 3700 of the Labor Code,
which requires every employer to be insured against liability for Workers' Compensation or
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undertake self-insurance in accordance with the provisions of that Code and will comply with
such provisions before commencing the performance of the work of this Contract.
B. Contractor and all subcontractors will carry workers' compensation insurance for
the protection of its employees during the progress of the work. The insurer shall waive its
rights of subrogation against City, its officers, agents and employees and shall issue a certificate
to the policy evidencing same.
C. Contractor shall at all times carry, on all operations hereunder, bodily injury,
including death, and property damage liability insurance, including automotive operations, bodily
injury and property damage coverage. All insurance coverage shall be in amounts specified by
City in the Insurance Requirements and shall be evidenced by the issuance of a certificate in a
form prescribed by the City and shall be underwritten by insurance companies satisfactory to
City for all operations, subcontract work, contractual obligations, product or completed
operations, all owned vehicles and non -owned vehicles. Said insurance coverage obtained by
the Contractor, excepting workers' compensation coverage, shall name the City, its Directors,
Officers, Agents, Employees, Engineers, and Consultants for this contract, and all public
agencies from whom permits will be obtained and their Directors, Officers, Agents and
Employees, as determined by the City, as additional insureds on said policies.
D. Before Contractor performs any work at, or prepares or delivers materials to, the
site of construction, Contractor shall furnish certificates of insurance evidencing the foregoing
insurance coverages and such certificates shall provide the name and policy number of each
carrier and policy and that the insurance is in force and will not be canceled without thirty (30)
days' written notice to City.
Contractor shall maintain all of the foregoing insurance coverages in force until the work
under this Contract is fully completed. The requirement for carrying the foregoing insurance
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shall not derogate from the provisions for indemnification of City by Contractor under Section 17
of this Contract. Notwithstanding nor diminishing the obligations of Contractor with respect to
the foregoing, Contractor shall subscribe for and maintain in full force and effect during the life of
this Contract, the following insurance in amounts not less than the amounts specified and issued
by a company admitted in California and having a Best's Guide Rating of A -Class VII or better:
Worker's Compensation In accordance with the Workers'
Compensation Act of the State of
California -- Minimum of
$1,000,000
Public Liability, in the form of
either Comprehensive General $1,000,000, per occurrence, or
Liability or Commercial General alternatively,
Liability written on a per -occurrence $1,000,000 aggregate, separate
basis for this project.
Automobile liability, including $1,000,000 per occurrence
non -owned and hired vehicles
City or its representatives shall at all times have the right to inspect and receive the
original or a certified copy of all said policies of insurance, including certificates. Contractor
shall pay the premiums on the insurance hereinabove required.
Section 17. Risk and Indemnification.
All work covered by this Contract done at the site of construction or in preparing or
delivering materials to the site shall be at the risk of Contractor alone. Contractor agrees to
save, indemnify and keep City, its Directors, Officers, Agents, Employees, Engineers, and
Consultants for this Contract, and all public agencies from whom permits will be obtained and
their Directors, Officers, Agents and Employees harmless against any and all liability, claims,
judgments, costs and demands, including demands arising from injuries or death of persons
(Contractors' employees included) and damage to property, arising directly or indirectly out of
the obligations herein undertaken or out of the operations conducted by Contractor, save and
except claims or litigation arising through the sole negligence or sole willful misconduct of City,
and will make good to and reimburse City for any expenditures, including reasonable attorneys'
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fees City may incur by reason of such matters, and if requested by City, will defend any such
suits at the sole cost and expense of Contractor.
Section 18. Stop Notice Administration.
City reserves the right to charge Contractor for City's actual administrative time (including
attorney's time) to administer and process stop notices filed by Contractor's subcontractors,
materialmen, or any other claimant or lienholder.
Section 19. Termination.
A. This Contract may be terminated in whole or in part in writing by either party in the
event of substantial failure by the other party to fulfill its obligations under this Contract through
no fault of the terminating party, provided that no termination may be effected unless the other
party is given: (1) not less than ten (10) calendar days' written notice (delivered by certified
mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with
the terminating party prior to termination.
B. This Contract may be terminated in whole or in part in writing by the City for its
convenience, provided that the Contractor is given (1) not less than ten (10) calendar days'
written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2)
an opportunity for consultation with the terminating party prior to termination.
C. If termination for default or convenience is effected by the City, an equitable
adjustment in the price provided for in this Contract shall be made, but (1) no amount shall be
allowed for anticipated profit on unperformed services or other work, and (2) any payment due
to the Contractor at the time of termination may be adjusted to cover any additional costs to the
City because of the Contractor's default. If termination for default is effected by the Contractor,
the equitable adjustment shall include a reasonable profit for services or other work performed,
but no adjustment will be allowed for anticipated profits. The equitable adjustment for any
termination shall provide for payment to the Contractor for services rendered and expenses
incurred prior to the termination, in addition to termination settlement costs reasonably incurred
by the Contractor relating to commitments which had become firm prior to the termination.
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D. Upon receipt of a termination action under paragraphs (A) or (B) above, the
Contractor shall (1) promptly discontinue all affected work (unless the notice directs otherwise),
and (2) deliver or otherwise make available to the City all data, drawings, specifications, reports,
estimates, summaries and such other information and materials as may have been accumulated
by the Contractor in performing this Contract whether completed or in process.
E. Upon termination under paragraphs (A) or (B) above, the City may take over the
work and may award another party an agreement to complete the work under this Contract.
Contractor agrees to perform all work under this Contract in accordance with the City's
designs, drawings and specifications. The Contractor guarantees for a period of at least one (1)
year from the date of substantial completion of the work that the completed work is free from all
defects due to faulty materials, equipment or workmanship and that he shall promptly make
whatever adjustments or corrections which may be necessary to cure any defects, including
repairs of any damage to other parts of the system resulting from such defects. The City shall
promptly give notice to the Contractor of observed defects. In the event that the Contractor fails
to make adjustments, repairs, corrections or other work made necessary by such defects, the
City may do so and charge the Contractor the cost incurred. The performance bond shall
remain in full force and effect through the guarantee period.
The Contractor's obligations under this clause are in addition to the Contractor's other
express or implied assurances under this Contract or state law and in no way diminish any other
rights that the City may have against the Contractor for faulty materials, equipment or work.
Section 20. Assignment.
No assignment by the Contractor of this Contract or any part hereof, or of funds to be
received hereunder, will be recognized by the City unless such assignment has had prior written
approval and consent of the City and the surety.
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Section 21. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this
Contract, the prevailing parry shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which it may be entitled. If any action
is brought against the Contractor or any subcontractor to enforce a Stop Notice or Notice to
Withhold, which names the City as a party to said action, the City shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements arising out of the defense of such action by
the City. The City shall be entitled to deduct its costs for any Stop Notice filed, whether court
action is involved or not.
Section 22. Resolution of Disputes.
The City and the Contractor shall comply with the revisions of California Public Contracts
Code Section 20104, et seq., regarding resolution of construction claims for any claims which
arise between the Contractor and the City.
Section 23. Notices.
Any notice required or permitted under this Contract may be given by ordinary mail at the
address set forth below. Any party whose address changes shall notify the other party in
writing.
To City: City of San Juan Capistrano
Public Works Department
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Public Works Director
To Contractor: Mr. Mobile Home
17952 Elm Street
Fountain Valley, CA 92708
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IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract as
of the date first hereinabove written.
"City"
CITY OF SAN JUAN CAPISTRANO
ATTEST:
M
k-1-1
R. Monahan, City Clerk
APPROVED AS TO FORM:
By:
John R. Si aw, City Counsel
"Contractor'
Mr. Mobile Home
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AGREEMENT
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MR. MOBILE HOME
17952 Elm St.
Fountain Valley, CA 92708
CA License #C47-742522
(714) 612-3745
PROPOSAL
Site Address:32400 Paseo Adelanto
San Juan Capistrano, Ca 92675
DATE: 12/18/02
JOB DESCRIPTION:
1. R & R approx. 170 I.f. 5" rain gutter.
2. R &Rapprox. 512 I.f. 2" x 8" facia and trim.
3. R & R approx. 780 I.f. 1"x4" trim.
4. R & R approx. 2840 sq. ft. T-1-11 siding.
5. Build new heater and furnace doors.
6. AC units and electrical removal and reinstallation to be performed by air
conditioning contractor.
ESTIMATED MATERIALS:$6027.54
ESTIMATED LABOR: $16200.00
JOB TOTAL:$22227.54
Estimated start to finish is approx. 3 weeks
EXHIBIT "A"
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