Transcript
Subcontract Agreement This document has important legal consequences. Consultation with an attorney is recommended with respect to its completion or modification.
Contract Date Contract Number TCI Invoicing Number Project Name Project Address
Name of Subcontractor
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Table of Contents Article 1
Scope of Work
Article 2
Subcontractor Price
Article 3
Contract Documents
Article 4
Prosecution of the Work
Article 5
Payment
Article 6
Insurance
Article 7
Bond
Article 8
Change Directives
Article 9
Inspection
Article 10
Termination or Taking Over Performance
Article 11
Limitation of Liability
Article 12
Disputes
Article 13
Privity
Article 14
Patent Infringement
Article 15
Assignment and Subletting
Article 16
Nondiscrimination
Article 17
Miscellaneous
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SUBCONTRACT AGREEMENT THIS SUBCONTRACT AGREEMENT, hereafter called "Subcontract," is made as of 2/28/2012, by and between TCI Architects/Engineers/Contractor, Inc., 1718 State Road 16, La Crosse, WI 54601 ("Contractor") and ("Subcontractor"), whose address is
RECITALS On or about _______- , the Contractor entered into a contract ("Prime Contract") with KTJ 204, LLC ("Owner") to furnish services, labor, material, and equipment for the construction of ___________("Project") located at ______ ("Project Site"), in accordance with the terms and provisions of the Prime Contract, including all general and special conditions, plans and specifications prepared by TCI Architects/Engineers/Contractor ("Architect"), addenda and any other documents forming, or by reference made a part thereof. The Subcontractor desires to subcontract with the Contractor for the performance of a portion of the Prime Contract upon terms and conditions set forth herein. In consideration of their mutual promises and covenants, the Subcontractor and the Contractor agree as follows: 1. Scope of Work. The Subcontractor shall furnish and pay for all supervision, labor (regardless of craft or jurisdiction), materials, tools, safety supplies and personal protective gear, equipment, services (whether temporary or permanent), power, heat, water, telephone, drinking water and sanitary facilities, cleanup, hoisting, hauling, unloading, storage and protection, scaffolding, appliances, quality assurance and testing, field measurements and survey, office facilities or utilities, shop drawings and samples, and all other items incidental or required or otherwise reasonably implied as necessary to fully perform this Subcontract in strict conformance with the Contract Documents as defined in Article 3 for the installation, completion, and operation of all work described as follows ("Work"): See Exhibit A – Scope of Work If the Subcontractor is responsible for design services as part of the Work, the Subcontractor shall cause the design to be prepared and certified, stamped, and signed by design professionals with suitable experience, education and qualifications and with the licenses and registrations as required by law.
2. Subcontract Price. For full performance of the Work in strict conformance with the Contract Documents as defined in Article 3, and of all other terms and conditions of this Subcontract, the Contractor shall pay the Subcontractor the sum of _________________ subject to adjustments made in accordance with Article 8 (the “Subcontract Price”). Retainage shall be ten percent (10%). 2.1 Changes. The Subcontract Price may be changed only in accordance with Article 8, Change Directives. 2.2. Taxes, Contributions, Etc. The Subcontract Price includes, and the Subcontractor accepts exclusive liability for, the payment of all federal, state, county, municipal, and other taxes imposed by law or contract including those based upon labor, services, materials, equipment, or other items acquired, performed, furnished, or used for or in connection with the Work, including (a) contributions, taxes, or premiums (including interest and penalties thereon) measured upon the payroll of or required to be withheld from employees; (b) sales, use, personal property, or other taxes (including interest and penalties thereon), whether stated or charged separately, imposed by reason of the performance of the Work or the acquisition, ownership, furnishing, or use of any materials, equipment, supplies, labor, services or other items for or in connection with the Work; and (c) pension, welfare, vacation, annuity, and other union benefit contributions payable under or in connection with labor agreements or any other employment-related contracts or practices. 2.3 Permits and Laws. The Subcontract Price includes, and the Subcontractor shall obtain and pay for (a) all necessary permits pertaining to the Work; (b) compliance with all applicable federal, state, and local laws, codes, ordinances, rules, regulations, directives and requirements, including O.S.H.A., Fair Employment Practices, Equal Employment Opportunity (EEO), non-discrimination requirements, safety requirements, environmental laws, Americans with Disabilities Act, labor, and hiring requirements or goals relating to small businesses, disadvantaged businesses, minorities or women; and (c) compliance with all duties and obligations of this Subcontract. 3. Contract Documents. The Contract Documents consist of this Subcontract document and its exhibits, the Prime Contract and all documents referenced therein, plans, specifications, project manuals, general and supplementary conditions, special conditions, addenda, subsequent modifications or revisions, and all other documents enumerated on the list of Contract 3 of 23
Documents listed in Article 17.7. All Contract Documents are fully incorporated herein by reference. With respect to the Contract Documents, the Subcontractor warrants as follows: 3.1. Comparison of Documents. The Subcontractor has carefully studied and compared the Contract Documents; has obtained clarification of all inconsistencies, errors, omissions, or other discrepancies in the Contract Documents; and has included in the Subcontract Price all sums required by such clarifications. 3.2. Examination of Conditions. The Subcontractor (a) has visited the site; (b) has investigated the nature and location of the Work and the general and local conditions which can affect the Work or the cost thereof; and (c) has examined all Contract Documents in relation to each other and to the Project Site, the structure and condition of the ground, the obstacles which may be encountered, labor conditions, and all other conditions having a bearing upon the performance of the Work, superintendence of the Work, time of completion, and all other relevant matters. Failure to have taken such steps shall not relieve the Subcontractor from responsibility for having estimated properly the difficulty or cost of successfully performing the Work. 3.3. Understanding of Documents. The Subcontractor understands the Work to include (a) all work shown on or reasonably implied by any of the Contract Documents as if called for or shown on all, and (b), all things necessary to complete the Work for use for its intended purposes in conformance with the Contract Documents or otherwise customarily provided in the Subcontractor's line of work. Wherever in the Contract Documents reference is made to the Contractor, and the work or specification therein pertains to the Subcontractor's trade, craft, or type of work, the Subcontractor shall be responsible for completing such work or specification. If conflicts exist within the Contract Documents as to quantity of material or quality of work, the Subcontractor shall provide the greater quantity or better quality shown or specified with no increase in the Subcontract Price. 3.4. Independent Conclusions. The Subcontractor enters into this Subcontract on the basis of its own examination, investigation, and evaluation of all matters and not in reliance upon any opinions or representations of the Contractor, the Architect, or the Owner or any of their respective officers, agents, or employees. The Subcontractor shall continue to carefully study and compare any design, documents, materials, and other information provided by the Contractor; take field measurements of any existing conditions related to the Work; observe any conditions at the site affecting the Work, and report promptly to the Contractor in writing any errors, inconsistencies, omissions, or violations of any legal requirements discovered. The Subcontractor shall be liable to the Contractor for any damages resulting from any such errors, inconsistencies, omissions, or violations of legal requirements that Subcontractor discovers and fails to report to the Contractor. 3.5. Flow Down of Prime-Contract Obligations. With respect to the Work, the Subcontractor agrees to be bound to the Owner and to the Contractor by all of the provisions of the Contract Documents, and to assume toward the Owner and the Contractor all of the duties and obligations that the Contractor by those Contract Documents assumes toward the Owner. The Subcontractor agrees further that the Owner and the Contractor shall have the same rights and remedies against the Subcontractor with the same force and effect as though every such right or remedy were set forth herein in full. The provisions of this Subcontract shall be in addition to and not in substitution for any of the provisions of the other Contract Documents. In the event of conflict with the other Contract Documents, this Subcontract shall govern. In the event of any conflict between this Subcontract and its exhibits, the exhibits shall govern. The Subcontractor shall bind lower tier subcontractors and suppliers to assume toward the Owner, the Contractor, and the Subcontractor the same duties and obligations that the Subcontractor assumes toward the Contractor. The Subcontractor shall include a provision in all subcontracts and supply agreements with the Subcontractor’s lower tier subcontractors and suppliers making the Contractor an intended third-party beneficiary of such subcontracts and agreements and all related warranties. 3.5.1. The Subcontractor shall comply with all laws and regulations applicable to this Subcontract or the Project and shall take all actions requested by the Contractor for the Contractor or Subcontractor to comply with applicable laws and regulations. 3.6 Design. If the Subcontractor’s scope of Work includes design, the following apply: 3.6.1 The Subcontractor shall, consistent with applicable state licensing laws, provide the architectural, engineering and other design professional services required to perform the Work. The Subcontractor agrees that such services shall be provided through qualified, licensed design professionals who are either (i) employed by the Subcontractor or (ii) procured by the Subcontractor from qualified, licensed design consultants. The Subcontractor shall not engage the services of any design consultant without first obtaining the written approval of the Contractor. The Subcontractor agrees that each design consultant shall be fully bound to the Subcontractor in the same manner as the Subcontractor is bound to the Contractor for all the requirements of the Contract Documents which are applicable to the design consultant’s scope of services. The Subcontractor shall at all times be responsible for the services performed by its design consultants, and shall coordinate the services of its design consultants to satisfy the Subcontractor's obligations under the Contract Documents. The Subcontractor shall cause the Contractor to be an intended third party beneficiary and an assignee of all contracts that the Subcontractor has with its design consultants. 4 of 23
3.6.2 In accordance with the times set forth in the schedule provided by the Contractor, the Subcontractor shall submit to the Contractor all interim design submissions and revisions for the Work as required by the Contract Documents and as may otherwise be required by the Contractor. Such design submissions shall be in the form and quantity called for in the Contract Documents and as otherwise required by the Contractor and may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. The submissions shall also show the relationship of the Work to the overall Project design. The Contractor and the Subcontractor agree that prior to the scheduled date for submitting all design submissions to Owner, the Contractor and the Subcontractor will hold meetings for the purpose of discussing and monitoring the design for consistency with the requirements of the Contract Documents, as well as the Contractor's budget and pricing assumptions. 3.6.3 In accordance with the Contract Documents and with the times set forth in the schedule provided by the Contractor, the Subcontractor shall submit to the Contractor construction documents setting forth in detail drawings and specifications describing the requirements for construction of the Work, and showing the relationship of the Work to the overall Project. The construction documents shall be consistent with the latest set of interim design submissions as such submissions may have been modified in a design review meeting. The Subcontractor shall provide the construction documents in the form and quantity called for in the Contract Documents and as otherwise required by the Contractor. The Subcontractor shall perform revisions requested by the Contractor or the Owner and submit revised construction documents to the Contractor for the Contractor's and Owner's approval. 3.6.4 The Subcontractor shall attend and participate in such meetings as are held between and among Owner, the Contractor and others as designated by the Contractor to discuss interim design submissions and the construction documents for the Work. If requested, the Subcontractor shall identify during such meetings, among other things, the evolution of the design and any significant changes or deviations from the Contract Documents, or, if applicable, previously submitted design submissions. 3.6.5 In addition to the interim design submissions and construction documents, if requested by the Contractor, the Subcontractor shall prepare (i) those design documents and pricing information for the Work that may be necessary for the establishment of a GMP Exhibit or GMP Proposal and (ii) interim design submissions and construction documents for the Work required to permit commencement of construction on a portion of the Project before the entire construction documents for the Project are completed. 3.6.6 The Contractor's and Owner's approvals of interim design submissions and the construction documents shall not excuse any deviation by the Subcontractor from the requirements of the Contract Documents. The review and/or approval by either the Contractor or Owner of any interim design submission or the construction documents shall not be deemed to transfer any design liability from the Subcontractor to the Contractor or Owner. 3.6.7 The Subcontractor will, at its own cost, revise any interim design submission or construction document it has provided to correct any errors, mistakes or omissions. Such revisions shall be performed timely and so as not to jeopardize the Project schedule or delay the Contractor in any way. 4. Prosecution of the Work. The Subcontractor agrees to prosecute the Work as follows: 4.1. Quality of Work. The Subcontractor shall supervise and direct the Work, using its best skill and attention, and shall execute all work in the best and most workmanlike manner by qualified, careful, and efficient workers to the highest standards for the Work. All the Work shall be strictly first quality in materials, erections, installation, and workmanship. Notwithstanding the dimensions given on the Contract Documents, it shall be the obligation of the Subcontractor to take such measurements as will ensure the proper matching and fitting of the Work. Incompetent or careless workmanship shall not be permitted by the Subcontractor and will not be accepted. The Subcontractor shall be solely responsible for all construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under the Subcontract. 4.2. Responsibility for Others. The Subcontractor shall be responsible to the Contractor for the acts and omissions of its employees, subcontractors, and their agents, employees or consultants, and all other persons responsible for any of the Work or others for whom the Subcontractor is responsible. The Subcontractor shall not be relieved from its obligation to perform the Work in strict accordance with the Contract Documents by the activities or duties of the Owner, the Contractor, or the Architect, or by inspections, tests, or approvals required or performed by persons other than the Subcontractor. To the fullest extent permitted by law and in addition to any other obligations of the Subcontractor, the Subcontractor shall be responsible to and shall hold harmless and indemnify the Contractor, the Architect, and the Owner (“Indemnitees”) against all claims, damages, losses and expenses (including attorneys’ fees (and expert fees) related thereto or to the enforcement of this paragraph) arising out of or in connection with any acts, omissions to act, or representations of its agents and employees, and all other persons either responsible for any of the Work under a contract with the Subcontractor or others for whom the Subcontractor is responsible. This paragraph 4.2 does not require the Subcontractor to indemnify to the extent that the liability, damages, injury, and claims are determined to have been caused by the Indemnitees’ negligence or intentional tort or other intentional fault. 5 of 23
4.3. Warranty. The Subcontractor warrants to the Owner and to the Contractor that all materials and equipment furnished under this Subcontract will be new unless otherwise specified, and that all Work will be of the best quality, free from faults and defects, and in strict conformance with the Contract Documents. All Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. No substitutions of similar supplies, materials or equipment for items called for by the Contract Documents shall be made unless approved in writing by the Contractor and Architect, which approval shall not relieve the Subcontractor from the satisfactory and timely completion of all Work in compliance with the Contract Documents. If required by the Contractor, the Subcontractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The quality required under this warranty shall, at a minimum, be equal to all standards or requirements of form, function, durability, performance, type, strength, efficiency, service, appearance, and other criteria established by the requirements of the Contract Documents. This warranty is in addition to and not in limitation of any other warranty or remedy provided by law or the Contract Documents. To the fullest extent permitted by law and in addition to any other obligations of the Subcontractor, the Subcontractor agrees to indemnify and hold the Owner, Architect, and the Contractor harmless from all claims, losses, damages, and expenses (including attorneys’ fees (and expert fees)) related to any breach of this warranty or the enforcement of this paragraph. This paragraph 4.3 does not require the Subcontractor to indemnify to the extent that the liability, damages, injury, and claims are determined to have been caused by the Indemnitee’s negligence or intentional tort or other intentional fault. 4.4. Supervision. The Subcontractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project Site at all times during the progress of the Work. The superintendent shall be satisfactory to the Contractor and shall not be changed except with the consent of the Contractor, unless the superintendent proves to be unsatisfactory to the Subcontractor or ceases to be in its employ. The superintendent shall at all times enforce strict discipline and good order among the Subcontractor's employees and subtrades, and shall not employ on the Work any unfit person or anyone not skilled in the assigned task. The superintendent shall represent the Subcontractor, and all communications given to or received from the superintendent shall be as binding as if given to or made by the Subcontractor. 4.5. Time of Performance. The Contractor may prepare a Project Schedule indicating the dates for the commencement and completion of the various stages of construction. Although the Contractor is not obligated to comply with the Subcontractor's input in preparing the Project Schedule or any update that may be prepared, it is the intent (but not the obligation) of the Contractor to seek the input of the Subcontractor for the Project Schedule, including updates, as it pertains to the Work. The Schedule may be revised as required by the Contractor in accordance with conditions of the Project. The Contractor reserves the right to direct the Subcontractor, without payment of additional compensation, to reschedule from time to time the order, rate, and sequence of performance of the Work as necessary to facilitate job progress. If a progress schedule is furnished by the Contractor to the Subcontractor, it shall be solely for the Contractor's benefit; the Subcontractor, however, must be ready to perform at the times indicated in the schedule. The Contractor makes no representation that it will be ready for the Subcontractor at the times indicated in the schedule, regardless of whether delays may result from circumstances within the Contractor's control. 4.5.1. Time is of the essence of this Subcontract. The Subcontractor agrees, within three (3) calendar days after notification by the Contractor or by such earlier time as is otherwise required by the Contract Documents, to commence the Work in the field at such points as the Contractor may designate and to continue diligently in the Subcontractor’s performance in strict accordance with the Project Schedule without delaying or hindering the Contractor's work or the work of other contractors or subcontractors. 4.5.2. If any part of the Work depends, for proper execution or results upon the work of the Contractor, any other subcontractor, or any other separate contractor at the Project Site, the Subcontractor shall inspect, and promptly report to the Contractor any apparent discrepancies or defects in such work that render it unsuitable for such proper execution and results. Failure of the Subcontractor so to inspect or report shall constitute an acceptance of the work of the Contractor, other subcontractors, or separate contractors as fit and proper to receive the Work. 4.5.3. The Subcontractor shall promptly provide the Contractor with scheduling information requested. The Contractor may revise the Project Schedule as the Contractor deems necessary as the Work progresses. The Subcontractor shall comply with all instructions given by the Contractor, including any to suspend, delay, or accelerate the Work. The Subcontractor shall not be entitled to any extension of time for completion or extra compensation due to suspension, delay, or acceleration not specifically allowed and paid for by the Owner. 4.5.4. If the Contractor determines that the sole cause of any suspension, interference, or delay of the Work is due solely to an unforeseeable cause beyond the Subcontractor's control and not due to any fault, neglect, act, or omission on the Subcontractor's part and did not arise from a delay caused by the Contractor, then the Subcontractor shall be entitled to an extension of time only and not damages (which includes a prohibition on recovering damages for extended overhead, labor costs, subcontract charges, costs of acceleration to mitigate delay, rescheduling of deliveries, demurrage, storage, equipment rental, insurance premiums, finance charges, demobilization, and remobilization related to the delay or suspension). Notwithstanding anything herein to the contrary, except to the extent the Contractor determines that any suspension or delay is due to a breach by the Contractor of the Contractor’s duties under this Subcontract, the Subcontractor shall be entitled to 6 of 23
such extension of time only if there is, and only to the extent of, an extension granted to the Contractor by the Owner under the Contract Documents for the same cause of delay. To the fullest extent permitted by law, the Subcontractor releases and discharges the Contractor from any and all claims for anything other than an extension pursuant to this paragraph on account of delay. The Subcontractor shall not be entitled to any extension of time or an increase in compensation or any damages unless a claim therefore is presented in writing to the Contractor within seventy-two (72) hours of the commencement of such claimed delay (or at least 24 hours before the Contractor is required to give such notice to Owner, whichever comes first) and is authorized by written change order. 4.5.5. Paragraph 4.5.4 does not preclude the recovery by the Contractor of damages for the Subcontractor's delay, disruption, interference, or default in performance should the Subcontractor default in performance of its Work or should it otherwise commit any act which causes delay, disruption, or interference. The Subcontractor shall be liable for all losses, costs, expenses (including attorneys’ fees (and expert fees) related thereto or to the enforcement of this paragraph), liabilities, and damages (including direct and consequential damages) sustained by the Contractor or by others to which the Contractor may be liable. 4.6. Coordination of Work with Others. The Subcontractor shall coordinate the Work with the work of the Contractor and all other contractors and subcontractors in a manner that will facilitate the efficient operation and progress of the entire work. This includes preparation of coordinated drawings and work schedules in areas of congestion. The Subcontractor is responsible for the intermeshing of the various parts of the Work so that no part shall be left in an unfinished or incomplete condition owing to any disagreement between its subcontractors or other subcontractors and the Subcontractor as to where the work of one begins and ends with relation to the work of the other. The Subcontractor shall furnish periodic progress reports of the Work as requested, including the dates of delivery for materials or equipment to be provided that may be in the course of preparation or manufacture. Shipment of all goods, materials and equipment to the Project shall be consigned to the Subcontractor c/o the Contractor c/o the Owner with all transportation, freight or delivery charges paid by the Subcontractor, and the Subcontractor shall be solely responsible for receiving, unloading, securing, and storing shipments. 4.7. Submittals. The Subcontractor shall review, approve, and submit to the Contractor shop drawings, product data, samples, and other submittals as may be required by the Contract Documents or as may be necessary to describe completely the details and construction of the Work with promptness and in such sequence as to ensure no delay in the Work or in the activities of the Contractor or others. Submittals made by the Subcontractor which are not required by the Contract Documents may be returned without action. 4.7.1. The Subcontractor shall not perform any portion of the Work requiring submittal and review of shop drawings, product data, samples or similar submittals until the respective submittal has been approved by all who are required to approve the submittal. Work shall be in accordance with approved submittals if the approved submittal is in conformance with the Contract Documents, and the Subcontractor shall notify the Contractor in detail in writing if the submittal is not in conformance with the Contract Documents. 4.7.2. By approving and submitting shop drawings, product data, samples, and similar submittals, the Subcontractor represents that the Subcontractor has determined and verified materials, field measurements, and field -construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. 4.7.3. The Subcontractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Contractor’s, Owner’s, or Architect's approval of shop drawings, product data, samples, or similar submittals unless the Subcontractor has specifically and clearly informed the Contractor in writing of such deviation at the time of submittal and the Contractor has given clear written approval to the specific deviation. The Subcontractor shall not be relieved of responsibility for errors or omissions in shop drawings, product data, samples, or similar submittals (nor of its obligation to perform the Work in strict compliance with the Contract Documents, nor of its responsibility for the proper matching and fitting of the Work with contiguous work and for making its own field measurements) by the Contractor’s, Owner’s, or Architect's approval thereof. 4.7.4. The Subcontractor shall direct clear and specific attention, in writing or on resubmitted shop drawings, product data, samples, or similar submittals, to revisions other than those requested on previous submittals. 4.7.5. Informational submittals upon which there is not expected to be responsive action taken may be so identified in the Contract Documents. 4.7.6. When professional certification of performance criteria of materials, systems, or equipment is required by the Contract Documents to be provided by the Subcontractor, the Contractor shall be entitled to rely upon the accuracy and completeness of such calculations and certifications. 4.8. Clean Up. The Subcontractor shall keep the Project Site and any offsite work areas clean of debris, spills, and waste resulting from the performance of the Work and shall remove from the Project Site and any off site work areas all debris, 7 of 23
spills, and waste generated by the execution of the Work. The Subcontractor shall be responsible for proper and environmentally sound cleanup and disposal, in conformance with applicable laws and regulations, of all debris, spills, waste, and other things resulting from performance of the Work. If, after twenty-four (24) hours' notice by the Contractor to the Subcontractor, the Subcontractor fails to comply with this paragraph, the Contractor may perform such necessary clean-up without further notice and deduct the cost plus a markup of twenty percent (20%) from any amounts due to the Subcontractor. In the event the Contractor is unable to determine which subcontractor is responsible for cleanup of debris, spills, waste, or other things, the Contractor may apportion the cost of such clean-up among the subcontractors (including the Subcontractor) that the Contractor determines to be responsible, and in such manner as the Contractor determines to be equitable. 4.9. Protection of the Work and Property. As between the Subcontractor and the Contractor, for the purpose of allocating any applicable loss and responsibility between them, the Subcontractor shall be solely responsible for the protection of the Work and the materials, tools, equipment, appliances, or other personal property, owned, or rented or used by the Subcontractor in the performance of the Work. 4.10. As-Built or Record Drawings. The Subcontractor shall maintain at the site for the Contractor one record copy of the drawings, specifications, addenda, change orders, and other modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved required submittals. These shall be delivered to the Contractor upon completion of the Work. If as-built or record drawings or specifications are required by the Contract Documents, the Subcontractor shall accurately record as-built conditions on the drawings and specifications on a weekly basis during the performance of the Work. Whenever requested by the Contractor, the Subcontractor shall provide complete and up to date as-built drawings to the Contractor in the form requested by the Contractor. 4.11. Indemnity. To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, and the Architect and their consultants, and agents and employees of any of them from and against all claims, damages (including death as to persons) or injury to all persons and to all property, losses (including loss of use) and expenses (including attorneys’ fees and expert fees) arising out of or resulting from performance of the Work, but only to the extent caused by the negligent acts or omissions of the Subcontractor, its subcontractors, consultants, agents and all other persons responsible for any of the Work, and anyone directly or indirectly employed by them or others for whom they are responsible, regardless of whether or not such damage or injury is caused in part by a party indemnified hereunder. The Subcontractor, to the fullest extent permitted by law, further agrees to indemnify, defend (using counsel of Contractor’s choice), and save harmless the Contractor and the Contractor’s surety, agents, and employees (“Indemnitees”) from all such liability, damages, injury, and claims and all liability, damages, injury, and claims of any kind resulting from the Subcontractor’s acts, omissions, or breach of this Subcontract including, without limiting the generality of the foregoing, claims for which the Contractor may be or may be claimed to be, negligent, grossly negligent, at fault, or otherwise liable, and all losses, costs, penalties, damages (including punitive damages) or expense, including attorneys’ fees (and expert fees) and disbursements related to such claims or to the enforcement of the provisions of this paragraph. This paragraph 4.11 only requires the Subcontractor to indemnify to the extent that the liability, damages, injury, and claims are determined to have been caused by the acts, omissions or breaches of subcontract of the Subcontractor, its subcontractors, agents and all other persons responsible for any of the Work, and anyone directly or indirectly employed by them or others for whom they are responsible. The Subcontractor further agrees to obtain, maintain, and pay for such general liability insurance coverage and endorsements as will insure the provisions of this paragraph as to all damages or injury (including death as to persons) to all persons, whether employees or otherwise, and to all property (including loss of use), arising out of (in whole or in part), resulting from, or in any manner connected with the execution of the Work provided for in this Subcontract (whether occurring before or after completion of the Work) or occurring or resulting from the use by the Subcontractor or the Subcontractor’s agents or employees, of materials, equipment, instrumentalities, or other property, whether the same be owned by the Contractor, the Subcontractor or third parties, but not to the extent such damages or injury actually results from the negligence or intentional tort or other intentional fault of the Indemnitees, including contractual liability, products and completed operations coverages. If any portion of this paragraph is determined to be unenforceable or invalid, this paragraph shall be deemed revised to require the Subcontractor to indemnify and hold harmless the Indemnitees to the fullest extent permitted by law. 4.11.1. The Subcontractor and the Contractor both acknowledge and agree that the indemnification and hold harmless obligations contained in this Subcontract are supported by adequate consideration and result from an arm’s length transaction between the parties and that the parties are of equal bargaining power. If an employee of the Contractor, the Subcontractor, anyone employed directly or indirectly by any of them, or anyone for whose acts any of them may be liable has a claim against any person or entity indemnified pursuant to Paragraph 4.11 above, the indemnification obligation under Paragraph 4.11 shall not be limited by any limitation on the amount of damages, compensation, or benefits payable by or for the Contractor or the Subcontractor or anyone else under any employee-benefits acts, including workers’ compensation or disability-benefits acts. The obligations under Paragraph 4.11 shall not be limited in any way by the amount or type of insurance required to be provided by the requirements of the Subcontract. 4.12. Indemnity Against Liens and Claims. To the fullest extent permitted by law, the Subcontractor shall indemnify, hold harmless, and defend (with the Contractor’s choice of counsel) (a) the land upon which the Work is performed and all improvements, structures, equipment, machinery, and other property now or hereafter placed thereon; (b) the Owner and the Contractor, jointly and severally, and their agents and employees; (c) any funds or accounts for the Project or the Contractor; 8 of 23
and (d) the Contractor's surety, if any, from any liens, charges, encumbrances, claims, or demands (including mechanic's and materialmen's liens or bond claims) arising out of or in connection with the performance by the Subcontractor or its subcontractors or suppliers, their employees, or anyone else under the Subcontractor at any tier. To the fullest extent permitted by law, the Subcontractor agrees to hold the Owner, the Contractor, and the Contractor's surety, if any, free and harmless from and to indemnify each of them against any and all losses, costs, penalties, damages (including punitive damages), or expenses (including attorneys’ fees and expert fees), related to any such lien, charge, encumbrance, or claim or demand or the enforcement of the provisions of this paragraph, regardless of any allegation by anyone, including the Subcontractor, that such claims relate to or arise from any negligence, gross negligence, breach, or other fault of the Contractor or other indemnitee. This paragraph 4.12 does not require the Subcontractor to indemnify to the extent that the liability, damages, injury, and claims are determined to have been caused by the indemnitee’s negligence or intentional tort or other intentional fault. The Subcontractor also agrees to release and remove of record or otherwise discharge of record any lien, charge, encumbrance, or claim at its own expense by payment and satisfaction of such lien, charge, encumbrance, or other claim within three (3) days of the filing or recording thereof. As a condition precedent to any payment under this Subcontract, the Contractor may require the Subcontractor to furnish in a form satisfactory to the Contractor complete waivers, releases, or satisfactions of any and all liens, charges, encumbrances, and claims. If any portion of this paragraph is determined to be unenforceable or invalid, this paragraph shall be deemed revised to require the Subcontractor to indemnify and hold harmless the Contractor to the fullest extent permitted by law. The Subcontractor acknowledges and agrees that the obligations of this paragraph 4.12 are supported by adequate consideration. 4.13. Labor. The Subcontractor shall not employ personnel, means, materials, or equipment which may cause strikes, work stoppages, or any disturbances or interferences by workers employed by the Subcontractor, the Contractor, or other contractors or subcontractors on or in connection with the Work, the Project, or the location thereof. The Subcontractor agrees to be bound by any applicable project labor agreement. Lower-tier subcontractors shall comply with this paragraph to the same extent, and an express provision imposing such provisions on lower tier subcontractors shall be included in their subcontracts. To the fullest extent permitted by law, the Subcontractor shall indemnify the Contractor against any liability, claim, loss, penalty, damage (including punitive damage), or expense resulting in any way, directly or indirectly, from the Subcontractor’s failure to comply with the requirements of this paragraph (regardless of actual or claimed negligence, breach of this Subcontract, or other fault of the Contractor), including attorneys’ fees, expert fees, and costs related thereto or to the enforcement of this paragraph. This paragraph 4.13 does not require the Subcontractor to indemnify to the extent that the liability, damages, injury, and claims are determined to have been caused by the indemnitee’s negligence or intentional tort or other intentional fault. 4.14. Tools and Equipment. The Subcontractor shall provide all tools and equipment necessary to perform the Work including, but not limited to, scaffolds, hoisting, and specialty items. The Contractor's tools and equipment shall be available to the Subcontractor only at the Contractor's discretion and on mutually satisfactory terms. The Subcontractor agrees to assume sole responsibility for (and to the fullest extent permitted by law shall indemnify, defend (with the Contractor’s choice of counsel), and hold harmless the Owner, the Contractor, and their agents and employees from) all claims for loss or damage to persons or property (including property of the Contractor, the Subcontractor and others) and all losses, penalties, costs, damages (including punitive damages), or expenses (including attorneys’ fees, expert fees, and disbursements related thereto or to the enforcement of this paragraph) to the Contractor arising out of or resulting from the Subcontractor's use of the Contractor's equipment including the hoisting of all persons and material (regardless of actual or claimed negligence, gross negligence, breach of this Subcontract, or other fault of the Contractor). The Subcontractor agrees that operators of the Contractor's equipment during the period of the Subcontractor's use, either singly or with others, shall be deemed loaned servants of the Subcontractor even though actually employed by the Contractor or others. This paragraph 4.14 does not require the Subcontractor to indemnify to the extent that the liability, damages, injury, and claims are determined to have been caused by the indemnitee’s negligence or intentional tort or other intentional fault. 4.15. Safety. The Subcontractor shall carry on the Work in a safe manner, shall comply with all safety measures initiated by the Contractor or required by the Contract Documents, and shall comply with all applicable laws, codes, ordinances, rules, regulations, and lawful orders of any public authority for the safety of persons or property. The Subcontractor shall handle and store all equipment and materials safely. The Subcontractor shall be solely responsible for the protection and safety of its employees, for the final selection of all safety methods and means, for the maintenance of required safety reports and records, for the provision of material safety data sheets required for any substances relating to the Work, for daily inspection of the Work area and its employees' safety equipment, and for the continual instruction of its employees on health and safety, including weekly safety meetings. When so ordered, the Subcontractor shall stop any part of the Work which the Contractor deems unsafe until corrective measures satisfactory to the Contractor have been taken. Failure on the part of the Contractor to stop unsafe practices shall in no way relieve the Subcontractor of its responsibility therefore, and shall not create any liability for the Contractor. The Subcontractor shall adopt and enforce a drug testing and prohibition policy among its employees. 4.16. Progress of Work. When, in the sole discretion of the Contractor, it becomes necessary at any time during the performance of this Subcontract to accelerate the Work, the Subcontractor, when directed by the Contractor, shall increase its work force or transfer personnel and equipment to other points in order to execute such portions of the Work as may be required to enable others to carry on their work properly and to stay current with the Project Schedule. Except as provided 9 of 23
below in this paragraph, even if overtime, extra personnel, additional shifts, extra equipment or materials, transportation of personnel or equipment are required, the Subcontractor shall have no claim for damages or extra costs due to such acceleration orders. If the Owner orders acceleration, the Subcontractor retains the right to claim for damages or extra costs from such acceleration only to the extent the Contractor recovers from the Owner on the Subcontractor's behalf for such acceleration pursuant to Paragraph 12.2, but the Subcontractor must meet all notice requirements and other conditions for any claims or payment. If the Contractor determines that the sole cause of the need to accelerate is due to actions of the Contractor and all other conditions are met, then the Subcontractor may recover the additional clearly documented direct costs incurred by the Subcontractor for Contractor-directed acceleration, but the Subcontractor must meet all notice requirements and other conditions for any claims or payment. 4.17. Work Stoppage. If the Subcontractor fails to correct defective Work or fails to carry out the Work in accordance with the Contract Documents, the Contractor, by a written order, may order the Subcontractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; this right of the Contractor to stop the Work, however, shall not give rise to any duty on the part of the Contractor to exercise this right for the benefit of the Subcontractor or anyone else. 4.18. The Contractor's Right to Proceed with Work. If the Subcontractor defaults or neglects to carry out the Work in accordance with the Contract Documents and the Subcontractor fails within forty-eight (48) hours after receipt of written notice from the Contractor to the Subcontractor to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may (a) require the Subcontractor’s surety , if any, to assume the obligations of the Subcontractor; (b) immediately and without prejudice to any other remedy it may have, make good such deficiencies; or (c) allow the Subcontractor to continue with the Work, but with the Contractor having the right to take any of (a) or (b) above if the Contractor is dissatisfied with the Subcontractor’s performance at any time. In the case of (b), an appropriate change order shall be issued deducting from the payments then or thereafter due the Subcontractor, or the Subcontractor’s surety (if any), the cost of correcting such deficiencies, and the cost of all architectural, consulting, and legal services incurred by the Contractor in connection with or as a result of such default, neglect, or failure, plus a markup of twenty percent (20%) on such costs. If the payments then due the Subcontractor are not sufficient to cover such amount, the Subcontractor or the Subcontractor’s surety shall immediately pay the difference to the Contractor. 4.19. Correction of Defective Work. Without cost to the Contractor or the Owner, the Subcontractor shall promptly correct improper or defective Work, materials, or equipment, and all other work and property affected by such correction which may be discovered within one (1) year from the date of final acceptance of the Project as a whole by the Owner. With respect to the corrected work, the one-year correction period shall run from the time of last correction. Without limitation by the foregoing, the Subcontractor shall provide and be bound by any broader guarantee or such longer guarantee period as required by the other Contract Documents or as may be otherwise provided. Required material, equipment, and system warranty documents and as-built drawings shall be delivered to the Contractor within thirty (30) days of completion of the Work or as otherwise required or allowed by the Owner or the Contractor. Nothing contained in this paragraph or in any other warranties shall be construed to establish a period of limitation with respect to other obligations which the Subcontractor might have pursuant to this Subcontract or otherwise. Establishment of the time period in this paragraph or in any other warranties relates only to the specific obligation of the Subcontractor to correct the Work, and has no relationship to the time within which the obligation to comply with this Subcontract may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Subcontractor's liability with respect to the Subcontractor's obligations other than specifically to correct the Work. 4.20. Audit and Verification. At any time and from time to time, the Contractor shall have the right to inspect, audit, and copy (and the Subcontractor shall make available to the Contractor) the books, records, and files (including all digital and electronic files) of the Subcontractor for verification of payments due, amounts claimed, quality of the Work, obligations owed lower-tier subcontractors or suppliers, amounts of claims, or any other obligations of the Subcontractor hereunder. The Subcontractor shall keep its financial records accurately, up to date, and in accordance with generally accepted accounting principles. The Subcontractor shall retain all of its estimates and bidding documents (including worksheets) as part of its records for this Project. At the Contractor's request, the Subcontractor shall promptly provide evidence satisfactory to the Contractor of its compliance with this Subcontract. This paragraph is specifically enforceable. 5. Payment. By the 25th day of each month, the Subcontractor shall submit to the Contractor a complete and accurate written and certified application for payment in approved form showing the value according to this Subcontract of the Work performed and completed as projected through the end of the month (including how all amounts are calculated) with all documentation and other submissions that may be required by the Contract Documents, from which amount shall be deducted (a) a retainage equal to either that amount retained from the Contractor by the Owner for the Work or the amount of retainage set forth under this Subcontract, whichever is greater; (b) all previous payments; (c) all charges for materials and services furnished by the Contractor to the Subcontractor; and (d) any other retention, charges or deductions provided for in this Subcontract and any other amounts owed by the Subcontractor to the Contractor. If an application for payment is received by the Contractor after the application date fixed above, it shall be submitted to the Owner for approval with the Contractor's next payment request. All applications must be properly sworn and completed by the Subcontractor, and the Subcontractor warrants their accuracy. The Subcontractor agrees that, upon request by the Contractor, it shall furnish such information and consents of surety, if any, as the Contractor may require. 10 of 23
5.1. Payment Upon Unit Prices. When payment is based upon quantities at applicable unit prices, the Subcontractor shall substantiate the quantities and the Contractor and the Owner shall have the right to examine, inspect, copy, and audit the books and records of the Subcontractor or any lower-tier subcontractor or other in order to verify the accuracy, correctness, completeness, and propriety of the quantities. Unit prices and quantities shall be measured by such methods as are set forth in the Contract Documents. If no method is set forth for measurement of a specific unit, then the method of measurement shall be the method chosen by the Contractor. In no event shall the Subcontractor be entitled to credit for more units than the Owner gives the Contractor credit for. 5.2. Payment on Lump Sum Basis. The Subcontractor shall submit to the Contractor for approval, within ten (10) days of execution of this Subcontract, a schedule of values of the parts of the Work, aggregating the Subcontract Price, prepared in such form and supported by such evidence as the Contractor may direct. Any schedule of values is established for payment purposes only and shall not relieve the Subcontractor from furnishing all Work required by this Subcontract. When submitting a schedule of values, the Subcontractor warrants that the schedule of values is not unbalanced and is reasonable in relation to the estimated cost of the Work. 5.3. Progress Payments. So long as the Subcontractor is not in default or breach of this Subcontract and is not subject to other reasons for withholding, monthly progress payments in approved amounts shall be made to the Subcontractor within seven (7) days after the Contractor's receipt of payment from the Owner. To the fullest extent permitted by law, receipt of payment from the Owner is a condition precedent to any payment obligation hereunder. The Contractor shall also have the right to withhold and to reduce any payments by reason of (a) any indebtedness owed by the Subcontractor to the Contractor; (b) defective Work not remedied or defective materials not removed and replaced; (c) third-party claims filed or reasonable evidence indicating possible filing of such claims; (d) failure of the Subcontractor to make payments to its subcontractors, suppliers, or laborers or to anyone below them; (e) reasonable doubt that the Work can be completed for the unpaid balance of the Subcontract Price; (f) damage to the Owner, Contractor, or another subcontractor; (g) unsatisfactory or untimely prosecution of the Work by the Subcontractor; (h) unsatisfactory or untimely delivery of submittals; (i) any failure of the Subcontractor to comply with the Contract Documents; (j) the Owner or Owner's lender's withholding payment from the Contractor under the Contract Documents due to the Subcontractor’s failure to perform or any other breach of the Subcontractor’s obligations; (k) any failure of the Subcontractor to honor its indemnity or insurance obligations to the Contractor or (l) a reasonable need to protect the Contractor for damages, obligations, or liability that exist or are reasonably anticipated to be owed by the Subcontractor. 5.4. Retainage Reduction. Should a reduction in retainage be made by the Owner, the Contractor may, without consent of the Subcontractor's surety, if any, reduce the Subcontractor's retainage accordingly. 5.5. Effect of Payment. The making of any progress or final payment by the Contractor to the Subcontractor (a) shall not constitute evidence of full or proper performance by the Subcontractor; (b) shall not be an acceptance of improper, faulty, or defective Work or materials; (c) shall not release the Subcontractor of any of its obligations under this Subcontract; and (d) shall not constitute a waiver of any rights or remedies hereof by the Contractor. Beneficial use or occupancy is not acceptance of the Work. 5.6. Application Form. No application for payment shall be complete, nor shall the Contractor be required to process such application or make any payment to the Subcontractor, nor shall payment be earned or due and owing, unless the Subcontractor is in strict compliance with this Subcontract and the Contractor has approved the application as to form and content and received the signed acceptance copy of this Subcontract, an insurance certificate evidencing coverage per this Subcontract, performance and payment bonds (if required), and any other documentation required to be submitted. 5.7. Stored Materials. Materials not yet incorporated into the Work, but delivered and suitably stored at the Project Site or at some other location agreed upon in writing, shall not be included in the application for payment unless (1) the Contract Documents so allow, and (2) both the Owner and the Contractor so approve in writing. Approval of payment for such stored items on or off the Project Site shall be conditioned upon submission by the Subcontractor of bills of sale and applicable insurance or such other procedures and documentation as is satisfactory to the Owner and the Contractor to establish the Owner's title to such materials and equipment or otherwise protect the Owner's and the Contractor's interests therein, including transportation to the Project Site. 5.8. Payment Release Procedure: Payment release procedure shall be as follows: 5.8.1. With each application for payment, the Subcontractor shall submit signed lien waivers and releases for itself and its subcontractors and suppliers in a form acceptable to the Contractor covering through the pay period covered by the most recent payment received by the Subcontractor (excluding only retainage listed in the lien waiver and release and claims specifically identified in the applicable lien waiver and release). The Subcontractor shall provide lien waivers and releases at such earlier time as may otherwise be required by the Contract Documents or if requested by the Contractor. 5.8.2. A Subcontractor/Material Supplier Affidavit Form shall be sent to the Subcontractor with either the first payment, or by 11 of 23
itself if the payment is a one-time payment in full payment, for all Subcontracts in excess of $10,000.00. This form requires that the Subcontractor identify all lower tier subcontractors and suppliers being utilized by the Subcontractor to complete the Work. This form must be filled out completely and correctly, signed, notarized, and returned to the Contractor before subsequent payments will be released to the Subcontractor. The Subcontractor shall immediately notify the Contractor by submitting a revised Subcontractor/Material Supplier Affidavit (filled out completely and correctly, signed, and notarized and clearly identifying the revision) if any of the information provided to the Contractor is inaccurate or changes in any way, including adding any new lower tier subcontractors or suppliers. 5.8.3. If any lower tier subcontractors or material suppliers are identified in the Subcontractor/Material Supplier Affidavit Form as holding subcontracts greater than $10,000.00 (“Large Sub-Subcontractors”), a Sub-Subcontractor/Sub-Material Supplier Affidavit Form shall be forwarded to the Subcontractor. The Subcontractor shall cause this form to be filled out completely and correctly and signed and notarized by the Large Sub-Subcontractors indicating that any and all payment owed has been made in full. These forms must be received by the Contractor before subsequent payments will be released to the Subcontractor, including final payment. 5.9. Final Payment: Final payment shall be made within seven (7) days after the Contractor's receipt of payment from the Owner, with receipt of such payment being a condition precedent to final payment to Subcontractor. Final payment shall also be subject to the following conditions precedent: (a) the Work shall be completed by the Subcontractor and accepted by the Contractor, the Owner, and the Architect; (b) the Subcontractor shall have furnished evidence satisfactory to the Contractor that there are no claims, obligations, or liens for labor, services, materials, equipment, taxes, or other items performed, furnished, or incurred for or in connection with the Work; (c) the Subcontractor shall have executed and delivered in a form satisfactory to the Contractor a General Release in favor of the Contractor, the Contractor's surety, if any, and the Owner and final lien waivers and releases from the Subcontractor and its lower tier subcontractors and suppliers in a form satisfactory to the Contractor; and (d) the Subcontractor shall have delivered to the Contractor written consent of the Subcontractor’s surety, if any, to final payment. Acceptance of final payment by the Subcontractor shall constitute a waiver and release by the Subcontractor of any and all past, present, and future claims against the Contractor, the Contractor’s surety (if any), and the Owner relating to or arising out of this Subcontract. 5.10. Subcontractor’s Payment Obligations: The Subcontractor shall pay its subcontractors, suppliers, employees and consultants, in accordance with its contractual obligations to such parties, all the amounts the Subcontractor has received from the Contractor on account of their contributions to and efforts related to the Work. The Subcontractor shall impose similar requirements on its lower-tier subcontractors to pay those parties with whom they have contracted. The Contractor shall have the right to contact the Subcontractor’s consultants, suppliers, subcontractors, and any others contributing to the Work to confirm that payments are current. The Contractor shall also have the right to make inquiry of the Subcontractor’s payment history on all projects involving a particular consultant, supplier, or subcontractor. The Subcontractor shall earmark all payments made to consultants, subcontractors, and suppliers by (a) identifying the project for which the payment is being made, and (b) including language on the check which limits application of the payment to bills owed on this Project. The Subcontractor agrees that (a) the Subcontractor shall accept a joint check; (b) the joint check provides no guarantee of payment to other parties; and (c) the Subcontractor shall accept the Contractor’s designation, if any, of the amount of the check to be allocated to the Subcontractor’s account versus the account of the joint payee. 6. Insurance. Prior to commencing any Work, the Subcontractor shall procure, maintain, and pay for such insurance as will protect against claims for bodily injury or death, or for damage to property which may arise out of or relate to the Work (before or after completion) or operations by the Subcontractor or any of its subcontractors, anyone employed by any of them, or by anyone for whose acts any of them may be liable, regardless of whose fault may have caused or may be claimed to have caused such claims. Such insurance shall include, but not be limited to, the minimum coverages and limits of liability specified below, or if greater, any coverages or limits of liability specified in the Prime Contract or as required by law. 6.1. Unless otherwise specified in the Contract Documents, as a minimum, the liability coverage provided by the Subcontractor shall be on an occurrence policy form, and include the following coverages and limits of liability: Workers’ Compensation Statutory Limits Employer’s Liability, including “Stop Gap” coverage and USL&H if applicable $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee Commercial General Liability (per project) $2,000,000 each occurrence $2,000,000 products/completed operations aggregate $2,000,000 general aggregate (per project) 12 of 23
Commercial Automobile Liability including owned, non-owned and hired vehicle coverage $1,000,000 any one accident or loss Contractor’s Pollution Liability (Applies if Subcontractor is providing any of the following as part of the Work): (i) Demolition; Fuel Providers (ii) Excavation, subterranean work; $1,000,000 each occurrence $2,000,000 aggregate (iii) Transporting of regulated or hazardous substances $5,000,000 each occurrence $5,000,000 aggregate (iv) Asbestos, Lead or Mold Abatement Umbrella/Excess Liability $5,000,000.00 minimum limit of liability coverage (following form on Employer’s Liability, Commercial General Liability, Products/Completed Operations, and Comprehensive Automobile Liability Coverages Professional Liability/Errors & Omissions (Applies if Subcontractor is providing engineering or design services.) $2,000,000 each claim $2,000,000 annual aggregate If the Subcontractor or any lower-tier sub-subcontractor in conjunction with the Project uses a vessel, then include Protection and Indemnity coverages, including coverage for crew and wreck removal and collision and tower’s liability. $2,000,000 per occurrence If the Subcontractor or any lower-tier sub-subcontractor in conjunction with the Project uses a vessel, then include Vessel Pollution Liability (OPA 1990) $2,000,000 per occurrence $2,000,000 annual aggregate Aircraft Public Liability Insurance (including bodily injury, property damage and passenger liability) if aircraft of any kind is used by the Subcontractor or any lower tier sub-subcontractors. $2,000,000 combined single limit bodily injury and property damage (for any one occurrence) for each aircraft 6.2. Employer’s Liability, Commercial General Liability, Contractor’s Pollution Liability, Professional Liability, Automobile Liability, Protection and Indemnity, and Vessel Pollution Liability insurances may be arranged under single policies for the full minimum limits required, or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy. 6.3. Commercial General Liability insurance required under this paragraph shall (a) be on a current ISO Form CG 00 01 or its equivalent; (b) include coverage for Products/Completed Operations, (c) be maintained for a period of three (3) years after completion of the Work, or such longer period as the Prime Contract may require; (d) specifically cover as “insured contracts” the Subcontractor’s indemnity obligations under this Subcontract and other contractual indemnities assumed by the Subcontractor under the Prime Contract; and (e) provide a $2,000,000 minimum general aggregate limit of liability on a perproject basis. EIFS exclusions or similar endorsements shall not be included for any Subcontractor performing exterior work, or work relating to EIFS or similar finishing systems. 6.4. To the fullest extent permitted by law, the Subcontractor shall endorse its Commercial General Liability, Commercial Automobile Liability, Contractor’s Pollution Liability (if applicable), and Umbrella/Excess Liability policies to add the Contractor and the Owner and all others as required by the Contract Documents as “additional insureds.” Such insurance afforded to the Contractor and the Owner as “additional insureds” under the Subcontractor’s policies shall be primary insurance and not excess over, or contributing with, any insurance purchased or maintained by the Contractor or the Owner. The “additional insured” endorsement to Subcontractor’s Commercial General Liability policy shall be on ISO Forms CG 20 10 07 04 and CG 20 37 07 04, or their equivalent, including coverage for ongoing and completed operations. 6.5. Commercial Automobile Liability insurance shall also include coverage for all owned, hired, and non-owned automobiles. 6.6. Contractor’s Pollution Liability insurance, if applicable to the Work, shall (a) be purchased and maintained by the Subcontractor during the performance of the Work and for a period of two years after completion of the Work; (b) specifically cover as “insured contracts” the Subcontractor’s indemnity obligations as set forth in this Subcontract and other contractual indemnities assumed by the Subcontractor under the Contract Documents; (c) include transportation coverage for loading, 13 of 23
unloading, and transporting of waste from the Project Site to the final disposal location with an endorsement scheduling the non-owned disposal facility if transportation of waste is included in the Work; (d) include a waiver of subrogation; (e) specifically include pollution coverage for all Work performed, such as asbestos, lead-based paint, and mold; (f) cover replacement or restoration costs as a result of pollution conditions; and (g) delete or amend any “insured vs. insured” exclusion to provide that the exclusion shall not apply to the Contractor or the Owner as an additional insured. Coverage shall be primary insurance and not excess over, or contributing with, any insurance purchased or maintained by the Contractor or the Owner. The Subcontractor shall provide a copy of the policy to the Contractor upon request. 6.7. Professional Liability/Errors & Omissions, if applicable to the Work, must be maintained for a period of three (3) years after completion of the Work. Any retroactive date on such Professional Liability policy shall be prior to the commencement of any Work under this Subcontract. Any professional liability insurance shall specifically delete any design-build or similar exclusions that could compromise coverages because of the design-build delivery of the Project. Such policies shall be provided prior to the commencement of any design services hereunder. 6.8. The Subcontractor shall maintain in effect all insurance coverages required under this Subcontract, or by the Prime Contract, at the Subcontractor’s sole expense and with insurance companies that have an A.M. Best rating of A- VII or better. 6.9. If the Subcontractor fails to procure and maintain the insurance coverage set forth herein, the Subcontractor shall be liable for paying and performing any obligations that the Subcontractor’s insurer would have paid or performed if the Subcontractor had procured and maintained the required insurance coverage; and, in addition to other rights, the Contractor may, but shall not be obligated to, obtain such insurance and charge all costs for such insurance to the Subcontractor, and the Contractor also has the right to terminate this Subcontract for default of the Subcontractor. 6.10. The insurance companies for all policies shall waive the right of subrogation against the Contractor and the Owner and provide evidence that the waiver is in place. 6.11. All insurance policies shall contain a provision that coverage afforded thereunder shall not lapse, be cancelled, nonrenewed, or have restrictive modifications added, without thirty (30) days prior written notice to the Contractor. Certificates of Insurance shall be filed with the Contractor prior to the start of the Work. Such Certificates of Insurance shall be in a form acceptable to the Contractor and shall provide satisfactory evidence that the Subcontractor has complied with all insurance requirements, including evidence that the Contractor and the Owner have been added as “additional insureds,” with the additional insured endorsement form numbers listed on the insurance certificate. If the CGL endorsement is not written on an “ISO” form, the endorsement(s) must be attached to the Certificate of Insurance. 6.12. If any of the insurance coverages are required to remain in force after final payment, an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment. 6.13. Builder’s Risk insurance, per the terms of the Prime Contract, shall be provided by: X Owner ___Contractor. If the Contractor provides Builder’s Risk coverage, the Subcontractor shall be named as an “additional insured” under the policy. 6.14. To the extent of coverage afforded by Builder’s Risk or any other property insurance applicable to the Work or the Project, regardless of whether such insurance is owned by or for the benefit of the Subcontractor, the Contractor, the Owner, or their respective contractors, subcontractors, and agents, the Contractor and the Subcontractor agree to waive all rights against (a) each other and any of their contractors, subcontractors, sub-subcontractors, agents, and employees, each of the other; and (b) the Owner and any of its contractors, subcontractors, agents, and employees, whether under subrogation or otherwise, for loss or damage to the extent covered by such insurance, except such rights as they may have to the proceeds of such insurance. If policies of insurance referred to in this paragraph require an endorsement to provide for continued coverage where there is a waiver of subrogation, then the owners of such policies will cause them to be so endorsed. A waiver of subrogation shall be effective as to a party even though that party would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the party had an insurable interest in the property damaged. 6.15. Any deductible amount applied to any loss payable under any builder’s risk or other property insurance applicable to the Work or the Project shall be borne by the insured party whose work is damaged in direct proportion as their individual losses shall bear to the total losses incurred in a single event, regardless of whether such loss is to work installed and completed, to materials stored on or off site, or to materials in transit. Neither the Contractor nor the Owner represents that any Builder’s Risk or property insurance applicable to the Work, if any, is adequate to protect the interests of the Subcontractor. It shall be the obligation of the Subcontractor to determine whether such insurance is in effect and provides adequate protection for its insurable interests, or whether the Subcontractor should purchase and maintain supplementary property insurance that it deems necessary to protect its interests in the Work. 6.16. The Subcontractor's surety, if any, shall be bound by its bonds until all claims against the insurance, including claims under Paragraph 4.11 and other indemnification obligations have been resolved and evidence of the resolution acceptable to 14 of 23
the Contractor has been furnished to the Contractor. 6.17. Compliance by the Subcontractor with the foregoing insurance requirements shall not relieve the Subcontractor from liability for amounts within or in excess of the limits of insurance. 6.18. If construction or any of the Work entails special hazards, the Subcontractor shall provide a rider or riders to be attached to the appropriate policies specified to cover such special hazards. 6.19. If any government agency or body requires special coverage for Work on or adjacent to public streets or property, the Subcontractor shall comply with and provide such insurance, endorsements, or extensions as may be required. 7. Bonds. If the Subcontractor is required to furnish performance and payment bonds herein, the Subcontractor shall furnish the Contractor, in a form satisfactory to the Contractor, separate and duly executed performance and payment bonds, underwritten by a surety or sureties satisfactory to the Contractor, in the full amount of this Subcontract. If bonds are required herein, the Subcontractor's failure to deliver satisfactory bonds may be deemed by the Contractor at any time (nothing other than an explicit written waiver by the Contractor shall waive the Contractor's rights) to be a material breach of this Subcontract. Any required bonds shall be delivered upon signing of this Subcontract. Unless explicitly provided otherwise elsewhere in this Subcontract, there shall be no additional compensation to the Subcontractor for the bonds, and the compensation for the bonds shall be deemed to be included in the compensation otherwise payable to the Subcontractor under this Subcontract. BONDS REQUIRED __ YES _X_ NO 8. Change Directives. The Contractor shall have the unilateral right by written change directive, without notice to the Subcontractor's surety, if any, to direct changes or deletions of the Work or other revisions to the scope of Work, the duties of the Subcontractor, or the time of completion of this Subcontract. Should the issuance of instructions, drawings, or directions by other than written directives be claimed to be a change resulting in additional costs, the Subcontractor shall submit a written notice of such claim to the Contractor within seventy-two (72) hours of receipt thereof (or one (1) business day before the Contractor must respond to the Owner, whichever is earlier) and also prior to commencing work thereon. The Subcontractor shall not be entitled to a price adjustment or schedule adjustment unless authorized to proceed in writing by the Contractor. The Subcontractor shall not have the right to prosecute or maintain an action in court or arbitration to recover for extra compensation or schedule adjustment not explicitly agreed to in writing by the Contractor (whether by direct claim, counterclaim, third-party claim, offset, recoupment, or any other equitable or legal theory or procedure) unless the Subcontractor has complied strictly with the notice of claims and authorization to proceed requirements and all other requirements and conditions precedent set forth in the Subcontract. Failure to strictly comply with the notice of claims or Authorization to Proceed requirements set forth herein shall constitute a full and final waiver and release of any claims by the Subcontractor related to the alleged change. 8.1. Computation of Price Change. The Subcontract Price shall be equitably adjusted down or, provided the Subcontractor has met all conditions precedent and requirements for complying with the Contractor's written change directives, notice requirements, and written Authorization to Proceed requirements, the Subcontract Price shall be equitably adjusted upward, as follows: 8.1.1. For the Owner's change directives or authorizations "passed through" by the Contractor, the Subcontract Price shall be increased or decreased by the sum (not including the Contractor’s markup or amounts attributable to the Contractor, other subcontractors, or others) paid or deducted by the Owner for and on behalf of the Subcontractor's changed, added, or deleted Work. The Subcontractor shall have the right to contest with the Owner the reasonableness of this sum only as provided in Paragraph 12.2 of this Subcontract. 8.1.2. For the Contractor's change directives or authorizations that do not originate from the Owner, the adjustment to the Subcontract Price for the changed, added, or deleted Work shall be determined by one or more of the following methods or combinations thereof as the Contractor may elect: (a) by mutual acceptance of a lump sum with properly itemized costs; (b) by unit prices stated in the Contract Documents or subsequently agreed upon (unit prices shall be deemed to include an allowance for the Subcontractor’s office expense, overhead, profit, and bond); or (c) by net increase or decrease in actual field cost incurred in performance of the changed Work, plus an allowance for overhead, supervision, and profit, defined as follows: 8.1.2.1. Actual field cost shall mean costs necessarily incurred in the proper performance of the Work and paid by the Subcontractor at rates not higher than the standard paid in the locality of the Project (except with the prior consent of the Contractor) defined as follows (a) wages paid for labor in the direct employ of the Subcontractor in the performance of the Work in the field or in the fabrication shop, plus an acceptable payroll markup to cover all overhead items applicable to payroll, such as insurance, taxes, F.I.C.A., worker's compensation, unemployment taxes, and union benefits; (b) net cost of all materials, supplies, and equipment used in or incorporated into the Work; (c) third-party rental charges of all necessary 15 of 23
machinery and equipment, exclusive of hand tools, used in performing the changed work, including installation, minor repairs and replacements, dismantling, removal, transportation, and delivery costs thereof at rental charges consistent with those prevailing in the area. Total third-party rental charges on machinery or equipment rented under an agreement containing a purchase-option clause shall not exceed seventy-five percent (75%) of the option purchase price. Hourly rates for Subcontractor-owned machinery and equipment used on the Project shall be charged at no more than fifty percent (50%) of Monthly Blue Book rates in effect at the time this Subcontract is entered into, divided by 176. Equipment rental will be paid only for actual production hours worked, or if there is a pass-through of the claim to the Owner, then for whatever rates and times as are allowed by the Contract Documents and actually paid by the Owner for the Work. 8.1.2.2. To the actual net field cost shall be added a percentage of ten percent (10%) if the change or extra work is performed by the Subcontractor's own forces, or five percent (5%), if the changed or extra work is performed by a subcontractor to the Subcontractor. This percentage added to the actual field cost shall be full compensation for the Subcontractor's and subsubcontractor's profit, general superintendence, hand tools, and equipment expense, capital and interest expense, insurance and bond expense, field office expense, overhead, and all other direct or indirect elements of extra cost. No additional amounts shall be recoverable by the Subcontractor. 8.2. Change Proposals. From time to time the Contractor may request from the Subcontractor proposals for possible changes in the Work. Without any additional charge to the Contractor, the Subcontractor shall review each such request and notify the Contractor in writing within five (5) days after its receipt of the request (or two (2) business days before the Contractor must respond to the Owner, whichever is earlier) as to the impact, if any, on the Work, including any adjustment in Subcontract Price or time. If the Subcontractor fails to respond within five (5) days (or two (2) business days before the Contractor must respond to the Owner, whichever is earlier), the Contractor shall determine the impact, if any, on the Work, and such determination shall be conclusive and binding upon the Subcontractor. 8.3. Proceeding with Work. Notwithstanding any disputes or disagreements over the changed Work, over the sum of the equitable adjustments under Paragraph 8.1 above, or any other matter, the Subcontractor nevertheless shall proceed promptly to perform and complete the Work as changed. 8.4. Contract Documents Applicable. All changes, additions, or omissions in the Work ordered in writing by the Contractor shall be deemed part of the Work hereunder and shall be performed in compliance with all the provisions of the Contract Documents. 8.5. Oral Changes Unauthorized. The Subcontractor shall not make any changes in the Work or in any way cause or allow the Work to deviate from the Contract Documents, without written direction from the Contractor. If the Subcontractor makes any changes in the Work without written direction from the Contractor, such change constitutes an agreement by the Subcontractor that it will not be paid for that changed Work. In addition, the Subcontractor shall be liable for any and all losses, penalties, costs, expenses (including attorneys’ fees and expert fees related thereto or to the enforcement of this paragraph), damages, and liability of any nature whatsoever associated with or in any way arising out of any such change it makes without written direction from the Contractor. 8.6. Payment. Payment for changed Work will be made to the Subcontractor only pursuant to Article 5. 9. Inspection. The Contractor, the Architect, the Owner, and their authorized representatives shall have the right to inspect and test the Work (including without limitation raw materials, fabricated materials, sub-assemblies, components, assemblies, Work in process of fabrication or installation) at all times and places to verify compliance of the Work with the Contract Documents and standards of good workmanship. 9.1. Access. The Subcontractor shall provide sufficient and safe facilities for inspection of the Work by the Contractor, the Architect, the Owner, and their authorized representatives in the field, at shops, or at any other place where materials or equipment for the Work are in the course of preparation, manufacture, treatment, or storage. Unlimited access shall be provided. 9.2. The Contractor's Benefit. All inspections and tests are for the sole benefit of the Contractor, the Architect, or the Owner and shall not relieve the Subcontractor of the responsibility for providing its own quality-control measures to ensure that the Work complies with the Contract Documents. Inspections or tests by the Contractor, the Architect, or the Owner shall not be construed as constituting or implying acceptance and shall not relieve the Subcontractor of responsibility for any noncompliance, damage to, or loss of the Work, nor in any way affect the continuing rights of the Contractor or the Owner after acceptance of the completed Work. 9.3. Rejection. Within twenty-four (24) hours after receiving written notice from the Contractor that any Work has been rejected by the Contractor or the Owner as defective or improper or in any way failing to comply with the Contract Documents, the Subcontractor at its own cost and expense shall take down and remove all portions of such Work from the premises and shall replace the same with proper and satisfactory work and make good all work of others damaged or destroyed by or as a result of such defective, improper, or noncomplying Work or by the taking down, removal, or replacement thereof. 16 of 23
10. Termination or Taking Over Performance. (a) Should the Subcontractor at any time (i) fail to supply sufficient skilled workers, supervisors, equipment, or materials of proper quality and quantity; or (ii) fail to proceed with the Work in the sequence or pursuant to the schedule directed by the Contractor for any reason, including any labor disputes or picketing; or (iii) fail to prosecute the Work with promptness and diligence; or (iv) cause the stoppage, delay of, or disruption or interference with or damage to the work of the Contractor or of any other contractors or subcontractors on the Project; or (v) breach any of the provisions of the Contract Documents; or (b) should the Contractor determine that the Work or any portion thereof is not being performed in compliance with the Contract Documents; or (c) should there be filed by or against the Subcontractor a petition in bankruptcy or for an agreement or reorganization (the Contractor being unwilling to accept and hereby declines performance by any trustee in bankruptcy or any assignee); or (d) should the Subcontractor fail to comply with its indemnification obligations to the Contractor or fail to maintain required insurance or bonds; or (e) should the Subcontractor become insolvent or go into liquidation or dissolution or make an assignment for the benefit of creditors or otherwise acknowledge insolvency; then, in any of such events (each of which shall constitute a default hereunder on the Subcontractor's part) and in addition to any other rights and remedies provided by its Contract Documents or by law, and after forty-eight (48) hours written notice to the Subcontractor mailed or delivered to its last known address, the Contractor may (i) perform and furnish through itself or through others any labor or materials for the Work and deduct the cost thereof plus a twenty percent (20%) markup on such costs from any money due or to become due to the Subcontractor under this Subcontract or recover such amounts from the Subcontractor (and its surety, if any), or (ii) terminate the employment of the Subcontractor for all or any portion of the Work, and either (1) demand completion of the Subcontract by the Subcontractor's surety, if any, or any other relief under any applicable bond or (2) enter upon the premises and take possession for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, appliances, and other items thereon, all of which the Subcontractor hereby transfers, assigns, and sets over to the Contractor for such purpose, and employ persons as necessary to complete the Work and to provide all the labor, services, materials, equipment, and other items required therefore (and the Contractor has the right to any combination of all the foregoing remedies). In case of default by the Subcontractor, the Subcontractor shall not be entitled to receive any further payment under this Subcontract until the Work shall be wholly completed to the satisfaction of the Contractor and shall have been accepted by the Contractor, at which time, if the unpaid balance of the amount to be paid under this Subcontract for Work actually performed by the Subcontractor shall exceed the cost incurred by the Contractor in completing the Work (plus a markup of twenty percent (20%) on all such costs for overhead and profit), such excess shall be paid by the Contractor to the Subcontractor; but if such cost (plus a markup of twenty percent (20%) on all such costs for overhead and profit) shall exceed the unpaid balance of the Subcontract Price, then as soon as this condition exists the Subcontractor, and its surety, if any, shall pay the difference to the Contractor and shall continue to make payments as such amounts accrue. Such cost shall include the cost of completing the Work to the satisfaction of the Contractor and of performing and furnishing all labor, services, materials, equipment, design, documentation, warranties, as-builts, and other items required therefore, and also all losses, damages, costs, and expense (including attorneys’ fees and expert fees) incurred by reason of or resulting from the Subcontractor's default or other breach of this Subcontract or the enforcement of the Contractor’s rights under this Subcontract or any bond provided by the Subcontractor. 10.1. Conversion. If it is later determined that any termination by the Contractor under Paragraph 10 was exercised without legal right or improperly, then the termination shall be deemed to be a convenience termination pursuant to the terms of Paragraph 10.2 below. 10.2. Convenience Termination. The Contractor for its own convenience shall have the right, unconditionally and for any reason and at any time, to terminate this Subcontract by written notice and to require the Subcontractor to cease Work hereunder. Such termination shall be effective at the time and in the manner specified in the notice and shall be without prejudice to any claims which the Contractor or the Owner may have against the Subcontractor. The Subcontractor shall be paid seven (7) days after the Contractor receives payment from the Owner for the direct value of the Work completed by the Subcontractor in full compliance with this Subcontract as of the date of termination, and the Subcontractor shall have no right to any payment for Work not performed (including hard costs, overhead, or profit) or any other claimed damages. 11. LIMITATION OF LIABILITY. IN NO EVENT, EITHER AS A RESULT OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, EQUITY, OR OTHERWISE, SHALL THE CONTRACTOR, THE ARCHITECT, OR THE OWNER BE LIABLE TO THE SUBCONTRACTOR FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF BONDING CAPACITY, LOSS OF REPUTATION, LOSS OF FINANCING, PRINCIPAL OFFICE EXPENSES (INCLUDING COSTS OF PERSONNEL STATIONED THERE), EXTENDED HOME OFFICE OVERHEAD, OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND. TO THE EXTENT THE CONTRACT DOCUMENTS ALLOW ANY LIABILITY TO BE IMPOSED, THE TOTAL LIABILITY OF THE CONTRACTOR, THE ARCHITECT, OR THE OWNER FOR ANY LOSS, CLAIM, OR DAMAGE ARISING OUT OF OR RELATED TO THIS SUBCONTRACT OR THE PERFORMANCE OR BREACH THEREOF, SHALL BE LIMITED EXCLUSIVELY TO THE DIRECT AND IMMEDIATE VALUE OF THE WORK PERFORMED. 12. Disputes. The parties agree to resolve all claims, disputes, and other matters arising out of or relating to this Subcontract, or the breach thereof as follows: 17 of 23
12.1. Arbitration. If the Contractor in its sole discretion decides and directs in writing that any claims, disputes, or other matters in question should be submitted for resolution to a court, which written direction may be issued at any time prior to the first day of an arbitration hearing, then such claim, dispute, or other matter in question shall be resolved in court as directed by the Contractor, and the Contractor shall not be required to arbitrate such claim, dispute, or other matter in question and shall not be bound by any arbitration award resolving such claim, dispute, or other matter in question. Unless the Contractor in its sole discretion otherwise decides and directs in writing that any claims, disputes, or other matters in question should be submitted for resolution to a court, which written direction may be issued at any time prior to the first day of an arbitration hearing, the parties shall resolve claims, disputes, and other matters in question as follows: 12.1.1. The Subcontractor and the Contractor shall arbitrate all claims, disputes and other matters in question arising out of or relating to this Subcontract or the breach thereof, except for decisions on matters relating to artistic effect, and except for claims, disputes, or other matters in question that have been waived or directed by the Contractor to be resolved in court. All arbitration proceedings shall be venued and held in La Crosse, Wisconsin or if otherwise directed by the Contractor, then in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in existence. 12.1.2. The Subcontractor specifically agrees to arbitrate with the Contractor and other parties in a joint proceeding, all common issues, and to permit pre-hearing discovery in the time and manner provided by the then -applicable Federal Rules of Civil Procedure if requested by the Contractor. 12.1.3. Notice of the demand for arbitration shall be filed in writing with the other party to the Subcontract and with the American Arbitration Association. The Subcontractor's demand for arbitration or assertion of the claim in a lawsuit shall be made within three (3) months after the claim, dispute, or other matter in question has arisen. The Subcontractor shall have strictly complied with such requirement and any other notice requirements or time deadlines for claims, disputes, or other matters in question and shall have complied with all obligations to preserve records and permit access, inspection, auditing, and copying of its records by the Contractor, otherwise the Subcontractor's claim, dispute, or other matter in question shall be deemed waived, released, and barred for all time. The Subcontractor shall be deemed to have waived and released any such claims, disputes, and other matters in questions and shall be barred from pursuing any such claims, disputes, or other matters by arbitration, litigation or otherwise. The Contractor shall be entitled to an order of the court staying arbitration or litigation of any waived, released, or barred claims, disputes, or other matters in question of the Subcontractor, and the Subcontractor shall pay all of the Contractor's related costs and expenses, including attorneys’ fees (and expert fees) related thereto or to enforcing this paragraph. 12.1.4. This agreement to arbitrate shall be specifically enforceable under the Federal Arbitration Act. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. 12.2. "Pass-Through" Claims. At the Contractor's sole discretion and upon the written request of the Subcontractor, the Contractor (a) may appeal on behalf of the Subcontractor, at the Subcontractor's sole expense, any decision or ruling of the Owner or the Architect or may institute any action or proceeding to resolve with the Owner or others any claim or dispute arising out of or relating to the Subcontractor's Work or performance, or (b) may permit the Subcontractor, at its sole expense, to prosecute against the Owner or others any claim or dispute in the name of the Contractor. 12.2.1. The Subcontractor shall be bound by the determination of Owner or, in the event of an appeal or further action or proceeding, by the outcome of same, and shall be entitled only to its proportionate share of any net recovery, less overhead and profit to the Contractor, and less the Contractor's expenses, attorneys’ fees, and expert fees. 12.2.2. The Subcontractor hereby waives and releases any and all claims, causes of action, and rights to payment for claims in addition to the Contract Price and extensions of time except as the Contractor may receive funds or extensions of time from the Owner for the Work. The Subcontractor shall post whatever security may, as a condition precedent, be required by the Contractor to cover all costs and expenses, including attorneys’ fees (and expert fees), as a condition of the Contractor's proceeding on the Subcontractor's behalf. 12.2. Proceeding with Work. The Subcontractor shall carry on the Work and maintain satisfactory progress while any claim, dispute, or other matter is being resolved. 12.3. Attorneys' Fees. Should the Contractor employ an attorney or expert to (a) institute suit or demand arbitration (b) resolve any claims, disputes, or other matters; (c) enforce this Subcontract; (d) protect the Contractor’s interest in any matter arising under or related to this Subcontract; (e) collect damages for the breach of this Subcontract; or (e) recover on any surety bond of the Subcontractor, then the Contractor shall be entitled to recover reasonable attorneys’ fees, expert fees, and expenses expended or incurred therein. This right is in addition to the Contractor’s rights to recover attorneys’ fees, expert fees, and expenses under other provisions of this Subcontract or at law. 13. Privity. Until final completion of the Project, the Subcontractor agrees not to perform any work directly for the Owner or any tenant thereof or deal directly with the Owner's representatives in connection with the Project unless otherwise directed in 18 of 23
writing by the Contractor. All work for this Project performed by the Subcontractor shall be processed and handled exclusively by the Contractor. 14. Intellectual Property Infringement and License. The Subcontractor shall pay all royalties and license fees and to the fullest extent permitted by law shall defend, indemnify, and hold harmless the Contractor from all suits and claims (including all related damages, costs, and expenses—including attorneys’ fees and expert fees) for infringement of any patent rights or copyrights arising out of or relating to the Work. All designs, drawings, specifications, documents, models, electronic data and other work products of the Subcontractor are instruments of service for this Project, whether or not the Project is completed, and are the property of the Contractor along with all copyrights therein. The Subcontractor shall obtain grants from the Subcontractor's consultants consistent with this Agreement. The Contractor is entitled to possession of all such work products (in both hard copy and electronic form) upon completion, termination of this Subcontract, or Contractor's request, whichever occurs first. The Subcontractor shall provide all such work product, including computer design electronic data, to the Contractor upon request. The Contractor has the right to assign interests in all such work products. The Subcontractor shall place on all such work product notice of the Contractor’s ownership or such other notice as the Contractor may direct. Submission or distribution of any such work product to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the rights granted or reserved in paragraph 14. 15. Assignment and Subletting. Neither this Subcontract nor any money due or to become due hereunder shall be assignable without the prior written consent of the Contractor, nor shall the whole or any part of this Subcontract be sublet without the prior written consent of the Contractor. Any such assignment or subletting without prior written consent shall be void and of no effect and shall vest no right or right of action in the assignee or the Subcontractor against the Contractor. The Contractor's consent to any assignment or subletting shall not relieve the Subcontractor of any of its agreements or obligations under the Contract Documents, and the Subcontractor shall be and remain as fully responsible and liable for the defaults, acts, and omissions of its assignees and subcontractors and all persons directly or indirectly employed by them as it is for its own defaults, acts, and omissions and those of its own officers, agents, and employees. The Subcontractor shall bind each of its subcontractors to all of the provisions of the Contract Documents with respect to any sublet Work. The Contractor's consent to any subletting shall not be deemed to create any contractual relationship between the Contractor and any subcontractor to whom the Work or any portion thereof is sublet and shall not vest any right of action in any subcontractor against the Contractor. 16. Nondiscrimination. The Subcontractor, during the performance of this Subcontract, shall take affirmative action to ensure that all employees and applicants are treated without discrimination with regard to race, color, creed, age, sex, or national origin; shall comply with all applicable federal, state, and local laws, ordinances, orders, and regulations; shall provide all required affirmative action plans; shall be and remain qualified by all applicable EEO Agencies; shall comply with any craft or other hiring goals in the Contract Documents; and shall certify that it does not maintain or provide for its employees any segregated facilities at any of its establishments as required by law, ordinance, order, or regulation. 17. Miscellaneous 17.1. Rights Cumulative. All of the Contractor's remedies herein are cumulative and in addition to all other remedies at law or in equity. 17.2. Entire Agreement. This Subcontract comprises the entire agreement between the parties hereto and is effective on the date set forth above. No other agreement, representation, or understanding concerning the same has been made and no oral statement, understanding, or agreement shall affect the terms hereof. 17.3. Severability. To the best knowledge and belief of the parties, this Subcontract contains no provision that is contrary to federal or state law, ruling, or regulation. If any provision of this Subcontract shall conflict with any such law, ruling, or regulation, however, then such provision shall continue in effect only to the extent permissible. In the event any provision is thus inoperative, the remaining provisions shall, nevertheless, remain in full force and effect. 17.4. Governing Law. If the Prime Contract is a federal -government contract, this Subcontract shall be construed and governed by federal common law of government contracts as enunciated and applied by federal courts, federal boards of contract appeals, and quasi-judicial agencies of federal government. If the Prime Contract is not a federal government contract or to the extent federal common law of government contracts is not dispositive when the Prime Contract is a federal government contract, this Subcontract shall be construed and governed by the laws of the State of Wisconsin without regard to principles of conflicts of law. 17.5. Succession. This Subcontract shall be binding on, and inure to, the benefit of the heirs, successors, and assigns of the parties hereto. 17.6. Headings. All sections and headings are used for convenience only and do not affect construction or interpretation of this Subcontract. 19 of 23
17.7. Exhibits. The following exhibits are attached hereto and made a part hereof: Exhibit A – Scope of Work Exhibit B – Project Drawings & Specifications Exhibit C – Project Schedule Exhibit D – Insurance Sample Certificate Exhibit E - Site Orientation
Other documents forming as part of this agreement are as follows: NOTE: [INCLUDE THIS EXHIBIT WHEN MAKING STATE-SPECIFIC REVISIONS TO THE SUBCONTRACT] 17.8 Non-Waiver. This Subcontract may not be changed or amended and no provision may be waived by the Contractor except in writing signed by the Contractor's authorized officers or agents. If the Contractor does not insist in any instance upon strict compliance with any of the provisions of this Subcontract, or exercise any options provided, this shall not be construed as a waiver of its right to thereafter require such compliance or to exercise such option. 17.9. Interpretation. As the context of this Subcontract may require, terms in the singular shall include the plural (and vice versa) and the use of feminine, masculine or neuter genders shall include each other. Wherever the word "including" or any variation thereof, is used herein, it shall mean "including, without limitation," and shall be construed as a term of illustration, not a term of limitation. Wherever the word "or" is used herein, it shall mean "and/or." 17.9.1. The Subcontractor is an independent contractor and shall not be deemed an agent, employee, or partner of the Contractor. Nothing contained in this Subcontract shall be construed as constituting a joint venture or partnership between the Contractor and the Subcontractor. 17.9.2. Nothing contained herein shall be deemed to give any third party any claim or right of action against the Contractor. 17.9.3. The Subcontractor and the Contractor agree that both shall be deemed to have participated in the drafting of this Subcontract, and conflicts, ambiguities, or discrepancies in this Subcontract shall not be construed against the drafter of the contract language.
The remainder of the page is intentionally blank. Signature page follows.
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In executing this Subcontract, the Contractor and the Subcontractor each individually represents that it has the necessary financial resources to fulfill its obligations under this Subcontract, and each has the necessary corporate approvals to execute this Subcontract, and perform the Work described herein. TCI ARCHITECTS/ENGINEERS/CONTRACTOR, INC.
_________________________________________ Project Manager Date
________________________________________ Name/Title Date
fb.us.7475014.01
* The Equal Employment Opportunity Clause required under Executive Order 11246, the affirmative action commitment for disabled veterans and veterans of the Vietnam era, set forth in 41 CFR 60-250.4, the affirmative action clause for handicapped workers, set forth in 41 CFR 60741.4, and the related regulations of the Secretary of Labor, 41 CFR Chapter 60, are incorporated by reference in this subcontract. By accepting this subcontract, Subcontractor certifies that it complies with the authorities cited above, and that it does not maintain segregated facilities, or permit its employees to perform services at locations where segregated facilities are maintained, as required by 41 CFR 60-1.8.
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EXHIBIT A – SCOPE OF WORK SUBCONTRACTOR: ADDRESS: CONTACT: PHONE/FAX: E-MAIL: PROJECT: OWNER CONTRACT NO.: TCI JOB/PO No. COST CODE: CONTRACT AMOUNT: CONTRACT DATE:
Sub-Job/Option
Cost Code
Detailing Joist/ Deck Material Shop Labor Field Labor Anchor Bolts/ Bolts Freight
SCOPE OF WORK IS AS FOLLOWS: i
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Amount
Exhibit B – Contract Documents
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SUBCONTRACT AGREEMENT
Job/TCI PO#
This Agreement is entered into on 3/7/2012
Between Contractor:
And Subcontractor:
Cost Code:
To Contact:
TCI Architects/Engineers/Contractor 1718 State Road 16 La Crosse, WI, 54601 "Contractor entered into a contract (the “TCI Contract”) dated 12/27/2011 with Owner (defined below) hereinafter referred to as the Prime Contract.
With the Owner
For the following Project:
The Architect for this Project is:
KTJ 204, LLC
TCI Architects/Engineers/Contractor
5125 County Road 101
1718 State Road 16
Minnesota,MN 55345
La Crosse,WI 54601
The Subcontract Documents consists of (1) this Agreement; (2) the Prime Contract (a copy of which has been made available to Subcontractor); (3) any additional documents listed in this Agreement; and (4) written modifications to this Agreement issued after the execution of this Agreement. WORK OF THIS SUBCONTRACT: Subcontractor acknowledges it has received and carefully examined all of the Subcontract Documents, including plans and specifications and is familiar with all of the requirements therein insofar as they affect the work to be done by Subcontractor. Subcontractor shall furnish and pay for all supervision, labor, materials, tools, safety measures, equipment, services, cleanup, hoisting, hauling, unloading, storage, protection, scaffolding, quality assurance and testing, field measurements, office facilities, utilities, shop drawings and samples, and all other items incidental or required or otherwise reasonably implied as necessary to fully perform this Agreement in strict conformance with the Subcontract Documents for the installation, completion, and operation of all work described as follows ("Subcontract Work"): See Exhibit A – Scope of Work OTHER DOCUMENTS FORMING PART OF THIS AGREEMENT ARE AS FOLLOWS: Document 0200 Payment Release; Exhibits A-B-C-D-E
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION: Time is of the essence of Subcontractor’s obligations. Subcontractor's date of commencement is the date of this Agreement, unless a different date is stated below, and the Subcontract Work shall be substantially completed by Subcontractor not later than: As directed by TCI
SUBCONTRACT SUM AND PROGRESS PAYMENTS: Contractor shall pay Subcontractor for completed performance of the Subcontract the sum of__________________________ subject to additions and deductions as provided in the Subcontract Documents (the “Subcontract Sum”). Said Subcontract Sum includes all applicable taxes, freight and transportation costs (terms will be FOB jobsite), and unloading unless otherwise noted.
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Progress payments are based upon applications for payment submitted to Contractor by Subcontractor. Subcontractor shall submit progress billings by the 25th of the month for all work to be completed by the 30th of that month. Contractor shall pay Subcontractor each progress payment, less 10% retainage, within five working days of receipt of payment from Owner for the Subcontract Work that is the subject of the progress payment. If a progress billing is received after the application date identified above, the billing shall be included by Contractor in the next progress billing to the Owner. Retainage shall be held until satisfactory evidence is presented that Subcontractor has completed all Subcontract Work, Subcontractor has paid all of its subcontractors, suppliers, and workmen, all Subcontract Work requiring inspection has been inspected and approved, and payment of retainage by the Owner to Contractor has been made. The Terms and Conditions printed on the attached pages are part of this Agreement. Unless otherwise provided, the definitions herein apply to the Terms and Conditions.
TCI ARCHITECTS/ENGINEERS/CONTRACTOR, INC.
____________________________________________________
_________________________________________________
/Project Manager
Name/Title
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Date
Date
TERMS AND CONDITIONS These Terms and Conditions are part of the Agreement between Contractor and Subcontractor. This Agreement comprises the entire agreement between the parties hereto and is effective on the date set forth above. No other agreement, representation, or understanding concerning the same has been made and no oral statement, understanding, or agreement shall affect the terms hereof. This Agreement shall be binding on, and inure to, the benefit of the heirs, successors, and assigns of the parties hereto. To the best knowledge and belief of the parties, this Agreement contains no provision that is contrary to federal or state law, ruling, or regulation. If any provision of this Agreement shall conflict with any such law, ruling, or regulation, however, then such provision shall continue in effect only to the extent permissible. In the event any provision is thus inoperative, the remaining provisions shall, nevertheless, remain in full force and effect. Subcontractor is an independent contractor and shall not be deemed an agent, employee, or partner of Contractor. A. THE CONTRACTOR SHALL: 1. Have the right to terminate this Agreement, upon three days written notice to Subcontractor; in the event Subcontractor fails to comply with any term of this Agreement. Subcontractor shall be liable to Contractor for all costs to complete the Subcontract Work, along with any other damages incurred by Contractor and caused by any breach of this Subcontract by Subcontractor or any other fault of Subcontractor and any related attorneys’ fees. If it is later determined that any termination by Contractor under this Paragraph 1 was exercised without legal right or improperly, then the termination shall be deemed to be a termination pursuant to the terms of Paragraph 2. 2. Have the right, unconditionally and for any reason and at any time for Contractor’s own convenience, to terminate this Agreement by written notice and to require Subcontractor to cease Subcontract Work hereunder. Such termination shall be effective at the time and in the manner specified in the notice and shall be without prejudice to any claims that Contractor, Prime, or Owner may have against Subcontractor. Subcontractor shall be paid seven (7) days after Contractor receives payment from Prime for the direct value of the Subcontract Work completed by Subcontractor in full compliance with this Agreement as of the date of termination, and Subcontractor shall have no right to any payment for Subcontract Work not performed (including hard costs, overhead, or profit) or any other claimed damages. Subcontractor shall remain responsible and liable for Subcontract Work performed prior to the date of the termination. 3. Have the right to order changes in the Subcontract Work, and Subcontractor shall perform the changes ordered by the Contractor. If Subcontractor claims that any order is a change for which Subcontractor is entitled to additional compensation or time to perform, Subcontractor must give written notice to Contractor to that effect within three (3) days of the order and before commencing any work on the change (whichever is earlier). If Subcontractor has provided the written notice and the order is a change (or if Contractor acknowledges in writing that there is a change order for which the Subcontract Sum and time to perform is subject to adjustment), the Subcontract Sum and time to perform shall be adjusted as mutually agreed, or if there is no mutual agreement, in a reasonable amount for any requested change. The adjustment to the Subcontract Sum shall be equal to the net increase or decrease in Subcontractor’s costs (not including overhead) directly affected by the change plus a markup for overhead and profit not to exceed ten (10) percent of those costs. Subcontractor shall track and document all impacts to cost and time to perform caused by a change. B. SUBCONTRACTOR: 1. Shall perform the Subcontract Work in strict conformance with the Subcontract Documents and diligently according to the schedule and sequencing provided to Subcontractor by Contractor (as Contractor may change that schedule and sequencing from time to time). Subcontractor shall be responsible for its means and methods. Subcontractor shall cooperate fully with Contractor to coordinate with other subcontractors and Contractor. 2. Warrants that Subcontractor is qualified to perform the Subcontract Work and that all representations made by Subcontractor to Contractor remain truthful and accurate and were truthful and accurate when made. 3. Shall submit shop drawings and other submittals required by the Subcontract Documents so as to cause no delay in the Subcontract Work or in the performance of the TCI Contract. 4. Shall give notices and comply with all laws, ordinances, rules, codes, and regulations bearing on the performance of the Subcontract Work. 5. Shall comply with OSHA regulations and take reasonable safety precautions with respect to the performance of this Agreement. 6. Shall not assign this Agreement, or any part of the Subcontract Work, without the written consent of Contractor. Any assignment without Contractor’s written consent shall be void and not binding on Contractor, and even if there is written consent, Subcontractor must incorporate this Agreement into its agreements with assignees, sub-subcontractors and suppliers and give Contractor the same rights and remedies against them as Contractor has against Subcontractor. 7. Shall keep the jobsite and surrounding area clean from debris caused by the Subcontract Work of this Agreement. If clean up of materials is not performed on a daily basis, Contractor has the right to do so and charge Subcontractor for all costs incurred plus a fifteen percent (15%) markup on those costs.
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8. Shall provide lien waivers and releases as requested by Contractor and promptly pay Subcontractor’s subcontractors and suppliers. Except only to the extent liens and claims result from the uncured failure of Contractor to make timely payment, Subcontractor shall, to the fullest extent permitted by law, (i) indemnify, save harmless and defend Owner, Prime, and Contractor from all bond claims, lien claims, and other claims for payment (whether asserted by Subcontractor or anyone else contributing to the performance of the Subcontract Work) and related damages and costs, including attorneys’ fees, and (ii) upon request by Contractor, satisfy and remove any liens and claims against Contractor; Owner; Prime; the Project; or Contractor’s, Prime’s, or Owner’s property or sureties within fifteen (15) days. 9. To the fullest extent permitted by law, shall indemnify, and hold harmless the Owner, Prime, Contractor, Architect, and agents and employees of any of them from and against claims, damages, losses and expenses, including claims for which the Owner, Prime, Contractor and Architect may be or claimed to be liable, and attorneys’ fees, including legal fees and disbursements paid or incurred to enforce the provisions of this paragraph, on account of death, injury or damage to persons or property, or to any and all other interests, received or sustained by any person, firm or corporation but only to the extent caused by the acts or omissions of Subcontractor, its subcontractors, agents, consultants and all other persons responsible for any of the Work under a contract with the Subcontractor, or anyone for whom Subcontractor is responsible. In claims against any person or entity indemnified under this Paragraph by an employee of Subcontractor, a sub-subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for Subcontractor or a sub-subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit acts. The obligations under this Paragraph shall not be limited in any way by the amount or type of insurance required to be provided to or for the benefit of an indemnitee. 10. Shall purchase and maintain insurance of the following types of coverage and limits of liability: Workers’ Compensation Statutory Limits Employer’s Liability, including “Stop Gap” coverage and USL&H (if Applicable) $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee Commercial General Liability $2,000,000 each occurrence $2,000,000 products/completed operations aggregate $2,000,000 general aggregate (per project) Commercial Automobile Liability (If Applicable) Professional Liability (If Applicable)
$1,000,000 any one accident or loss
$1,000,000 each claim $1,000,000 annual aggregate
Employer’s Liability, Commercial General Liability and Automobile Liability insurance may be arranged under single policies for the full minimum limits required, or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy. Subcontractor shall endorse its Commercial General Liability, Commercial Automobile Liability, and Umbrella/Excess Liability policies to add Contractor, Prime, and Owner as “additional insureds”. Such “additional insured” coverage shall be primary coverage (and non-contributory) for claims against Contractor, Prime, and Owner arising out of the operations of Subcontractor under this Agreement. All insurance policies shall contain a provision that coverage afforded thereunder shall not be cancelled, allowed to expire, or have restrictive modifications added, without thirty (30) days prior written notice to Contractor. Subcontractor shall deliver to Contractor certificates of insurance acceptable to Contractor prior to Subcontractor’s commencement of the Subcontract Work. Such Certificates of Insurance shall be in a form acceptable to Contractor and shall provide satisfactory evidence that Subcontractor has complied with all insurance requirements, including evidence that Contractor, Prime, and the Owner have been added as “additional insureds.” These certificates shall contain a provision that coverages afforded under the policies will not be canceled, allowed to expire, materially altered, or have restrictive modifications added until at least 30 days' prior written notice has been given to Contractor. 11. Warrants the Subcontract Work to be in strict compliance with the Subcontract Documents, of high quality and good workmanship, and to at least meet all applicable codes and standards of the profession. All material shall be new unless otherwise agreed to by Contractor in writing. Subcontractor shall promptly correct Subcontract Work not complying with the Subcontract Documents if notified by Contractor, Prime, or Owner within one year of final completion of the General Contract or such longer period as may be contained in any of the Subcontract Documents. This one year or longer period shall not be a period of limitations and is only for the specific duty of Subcontractor to correct the Subcontract Work. Contractor, Prime, and Owner shall also have the benefit of such other warranties as may contained in the Subcontract Documents. 12. Shall have the right to terminate the Agreement for nonpayment of amounts due for 60 days or longer if Contractor does not subsequently make payment within fifteen days (15) days after receipt of written notice from Subcontractor of Subcontractor’s intent to terminate. 4of 7
13. Agrees that if Subcontractor begins Subcontract Work without signing and returning this Agreement, Subcontractor will be deemed to have accepted and agreed to the terms of this Agreement. 14. Shall pay to Contractor all costs and expenses including but not limited to court or arbitration costs, attorneys' fees, expert witness and investigation fees, incurred by Contractor in enforcing the terms of this Contract. 15. Arbitration. If the Contractor in its sole discretion decides and directs in writing that any claims, disputes, or other matters in question should be submitted for resolution to a court, which written direction may be issued at any time prior to the first day of an arbitration hearing, then such claim, dispute, or other matter in question shall be resolved in court as directed by the Contractor, and the Contractor shall not be required to arbitrate such claim, dispute, or other matter in question and shall not be bound by any arbitration award resolving such claim, dispute, or other matter in question. Unless the Contractor in its sole discretion otherwise decides and directs in writing that any claims, disputes, or other matters in question should be submitted for resolution to a court, which written direction may be issued at any time prior to the first day of an arbitration hearing, the parties shall resolve claims, disputes, and other matters in question as follows:
15.1.1. The Subcontractor and the Contractor shall arbitrate all claims, disputes and other matters in question arising out of or relating to this Subcontract or the breach thereof, except for decisions on matters relating to artistic effect, and except for claims, disputes, or other matters in question that have been waived or directed by the Contractor to be resolved in court. All arbitration proceedings shall be venued and held in LaCrosse, Wisconsin or if otherwise directed by the Contractor, then in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in existence. 15.1.2. The Subcontractor specifically agrees to arbitrate with the Contractor and other parties in a joint proceeding, all common issues, and to permit pre-hearing discovery in the time and manner provided by the then-applicable Federal Rules of Civil Procedure if requested by the Contractor. 15.1.3. Notice of the demand for arbitration shall be filed in writing with the other party to the Subcontract and with the American Arbitration Association. Notwithstanding any otherwise applicable period of limitations, the Subcontractor's demand for arbitration or assertion of the claim in a lawsuit shall be made within three (3) months after the claim, dispute, or other matter in question has arisen. The Subcontractor shall have complied with such requirement and any other notice requirements or time deadlines for claims, disputes, or other matters in question and shall have complied with all obligations to preserve records and permit access, inspection, auditing, and copying of its records by the Contractor; otherwise, the Subcontractor's claim, dispute, or other matter in question shall be deemed waived, released, and barred for all time. The Subcontractor shall be deemed to have waived and released any such claims, disputes, and other matters in questions and shall be barred from pursuing any such claims, disputes, or other matters by arbitration, litigation or otherwise. The Contractor shall be entitled to an order of the court staying arbitration or litigation of any waived, released, or barred claims, disputes, or other matters in question of the Subcontractor, and the Subcontractor shall pay all of the Contractor's related costs and expenses, including attorneys’ fees (and expert fees) related thereto or to enforcing this paragraph. 15.1.4. This agreement to arbitrate shall be specifically enforceable under the Federal Arbitration Act. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. 15.1.4. This agreement to arbitrate shall be specifically enforceable under the Federal Arbitration Act. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
• The Equal Employment Opportunity Clause required under Executive Order 11246, the affirmative action commitment for disabled veterans and veterans of the Vietnam era, set forth in 41 CFR 60-250.4, the affirmative action clause for handicapped workers, set forth in 41 CFR 60-741.4, and the related regulations of the Secretary of Labor, 41 CFR Chapter 60, are incorporated by reference in this subcontract. By accepting this subcontract, Subcontractor certifies that it complies with the authorities cited above, and that it does not maintain segregated facilities or permit its employees to perform services at locations where segregated facilities are maintained, as required by 41 CFR 60-1.8.
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DOCUMENT 0200 PAYMENT RELEASE PROCEDURE 1. A “WAIVER AND RELEASE TO DATE AND CONTRACTOR’S AFFIDAVIT” is sent with each payment for the amount of that payment and must be signed by Subcontractor and returned to TCI Architects/Engineers/Contractor, Inc. before subsequent payments will be released. Subcontractor must provide the waiver/affidavit which lists all of its subcontractors and suppliers as required by the Subcontract Documents or by Contractor. Contractor is not required to make any payment unless and until Subcontractor has delivered all required waivers to Contractor. 2.If any lower tier subcontractor(s)/material supplier(s) greater than $10,000 are identified on the “WAIVER AND RELASE TO DATE AND CONTRACTOR’S AFFIDAVIT”, a “2nd TIER FINAL WAIVER AND RELEASE AND CONTRACTOR’S AFFIDAVIT” will be sent to Subcontractor. This form must be forwarded on to Subcontractor’s lower tier subcontractor(s)/material supplier(s) to be filled out COMPLETELY, signed and notarized by them indicating that they have been paid in full from Subcontractor. These forms must be received by TCI Architects/Engineers/Contractor, Inc. before any subsequent payments will be released to Subcontractor, including final payment. Contractor is not required to make any payment unless and until this form has been fully completed for each such lower tier subcontractor/material supplier and received by Contractor.
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EXHIBIT A – SCOPE OF WORK SUBCONTRACTOR: ADDRESS: CONTACT: PHONE/FAX: E-MAIL: PROJECT: OWNER CONTRACT NO.: TCI JOB/PO No. COST CODE: CONTRACT AMOUNT: CONTRACT DATE:
Sub-Job/Option
Cost Code
SCOPE OF WORK IS AS FOLLOWS:
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Amount
