In connection with the Subcontractors’ performance of the Work
under this Agreement, the Subcontractor agrees as follows:
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The Subcontractor shall perform the Work in accordance with and
subject to each of the provisions of the prime Contract to the full extent
that each such provision is applicable to the work.
Subcontractor expressly agrees that if the Owner/Lessee and/or any
Prime Contractor identified in the Subcontract Agreement requires the
performance of any act or thing by or imposes any obligation on Contractor in
connection with the performance completion of any part of the Work, the
Subcontractor hereby also assumes such obligations, and the Subcontractor
shall perform the same to the full extent that the Prime Contract requires of
the Contractor. The Contractor
shall have the same right and remedies against the Subcontractor with respect
to such obligations as the Owner/Lessee, and/or such Prime Contractor, has
against the Contractor, with same force and effect as if each and every such
obligation, right or remedy were set forth in full herein.
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The Subcontractor shall (i) pay for all materials, skill, labor
and instrumentalities used, supplied and /or required in connection with
performance of the Work and any all other obligations of Subcontractor under
this contract, when and as bills or claims therefore become due, (ii) save and
protect the premises on which the Work is being performed, the Owner/Lessor,
the Prime Contractor (if any) and the Contractor from all claims and
mechanics’ lien on account thereof, and (iii) furnish satisfactory evidence
to the Contractor, when and if required, that Subcontractor has complied with
the above requirements. This provision shall not be construed as a waiver of
the right of the Subcontractor to file and enforce a lien claim against the
Owner/Lessor in the event of the Contractor’s failure to pay the
Subcontractor.
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The Subcontractor shall begin the Work contracted hereunder as
directed by the Contractor, and shall carry out such Work with speed and
dispatch so as not to delay the progress of completion of any other work of
the Contractor or any other subcontractor in connection with the job in
question. Contractor may charge back to the Subcontractor damages suffered by
the Contractor caused by a delay of the Subcontractor in the performance of
this contract. The Subcontractor shall clean up after the Subcontractor’s
Work, and if this is not done expeditiously after notification by the
Contractor, said cleanup may be done by the Contractor, and charged to the
account of the Subcontractor. In the event that the Subcontractor delay’s
the Contractor, the Subcontractor shall be notified in writing and have
forty-eight (48) hours to perform under the terms of this contract, or the
contract shall be immediately terminated at the option of the Contractor.
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The Subcontractor shall proceed with the work in the sequence
directed by the Contractor and abide by the Contractor’s decision as to the
allotment of all storage and working space on the project.
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No extension of the time for performance of this contract shall
be recognized by the Contractor without the written consent of the Contractor.
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The Subcontractor shall pay for any expense or damage the
Contractor or any other subcontractor may suffer or incur as a result of the
Subcontractor’s failure through causes other than those specified in
paragraph C (2) hereof to carry out provision or provisions of this Agreement.
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Before performing any of the Work, Subcontractor shall obtain
and submit the Contractor insurance certificates from Subcontractor’s
insurance carriers naming Contractor as an additional insured and indicating
coverage with limits of liability as set forth in the Prime Contract;
provided, however, that if the required
coverage and/or limits of liability required for such insurance under the
Prime Contract are less than the following specified coverage’s and limits
of liability, then Subcontractor’s insurance shall, at a minimum be of the
following types and in the following minimum coverage amounts:
a.
Workmen’s compensation and occupational disease insurance, including
employer’s liability, with minimum coverage of One Hundred Thousand and 00/100
Dollars ($100,000.00);
b.
Comprehensive general liability insurance which shall also cover
Subcontractor’s indemnity obligations pursuant to paragraph A (8) hereof,
although the existence of such insurance shall in no event limit the liability
of Subcontractor under this contract. Limits of liability under such
comprehensive general liability insurance shall not be less that One Million and
00/100 Dollar ($1,000,000.00) combined, single limit for each occurrence for
bodily injury and property damage liability. The insurance shall include blanket
(broad form) contractual liability coverage. If Subcontractor’s work includes
blasting, or the grading of land, excavation, burrowing, backfilling, tunneling,
drilling, pile driving, cotterdam or cassion work, or includes moving, shoring,
underpinning, raising or demolition of any building or structure or removal or
rebuilding of any structural support thereof, the comprehensive general
liability insurance described herein shall not exclude injury to or destruction
of property arising out of or caused by such work. Subcontractor’s
comprehensive general liability insurance shall include the Owner/Lessee, the
Architect, the Contractor and all others required under the Prime Contract
and/or related documents as additional insureds and must provide premises
operations coverage, and elevator, independent contractor’s broad form
property damage, and contractual liability product and completed operation’s
coverage, which shall be maintained in force for a period of five (5) years
after completion of the project or for such longer period of time as is required
under the Prime Contract and/or any other related contract documents, and must
be endorsed as primary and non-contributory to any insurance carried by the
Owner/Lessee, the Contractor or any other person named as an additional insured
under such insurance. Any “XCU” (explosion, collapse or underground) or
similar exclusions written in any policy must be deleted when applicable to
operations performed by the Subcontractor. A waiver of subrogation in favor of
the Contractor shall also be included.
c.
Automobile liability for bodily injury and property damage claims arising
out of the ownership, maintenance or use of owned, hired and non-owned vehicles
subject to the limits set forth in the Prime Contract but in no event less than
One Million and 00/100 Dollars ($1,000,000.00).
d.
All insurance policies shall be issued by reputable insurance companies
accepted to Contractor and authorized to do business under the laws of the state
in which the Work will be performed. Such insurance policies shall provide that
no material change in, or cancellation of, any such insurance shall be effective
until after Contractor has been given not less than thirty (30) days’ prior
written notice thereof. The insurance certificates provided by Subcontractor
shall specifically state that coverage is provided for the indemnification
obligations of Subcontractor pursuant to paragraph A (8) hereof, and all
indemnity obligation of the Contractor pursuant to Prime Contract when
Contractor’s indemnity obligation thereunder results in whole or in part
directly from any act or omission of Subcontractor or any agent, employee,
subcontractor or other representative of Subcontractor.
e.
In the event Subcontractor fail to obtain and maintain the insurance
coverage’s required hereunder, or to provide the certificates of such
insurance reference herein, then Contractor, in additional to and not in
limitation of any other rights or remedies Contractor may have hereunder or
otherwise at law or in equity, may, but shall not be obligated to, take any and
all actions Contractor reasonably deems necessary to obtain the necessary
coverage’s on Subcontractor’s behalf and charge all costs incurred to
Subcontractor. This paragraph 8 shall survive the completion of the Work.
8.
The Subcontractor hereby assumes entire responsibility and liability for,
and agrees to indemnify the Owner/Lessee, Contractor and their respective
officers, agents, employees, partners, shareholders and representatives
(collectively, the “ Indemnity Parties”) and hold the Indemnity Parties
harmless for, form and against, any and all liability, loss, cost, damage,
expense claim or claims and cause(s) of action of any kind or nature whatsoever
(including claims due to death or injuries to persons or property), including
but not limited to court costs and reasonable attorney’s fees, caused in whole
or in part by, resulting in whole or in part from, or otherwise arising directly
or indirectly out of, or directly or indirectly related to, this Agreement or
Subcontractor’s performance of the Work hereunder. The Subcontractor, on
demand, agrees to assume, on behalf of the Indemnified Parties, the defense of
any action at law or inequity which may be brought against Contractor or any of
the other Indemnified Parties in connection with any of the matters against
which Subcontractor has indemnified such Indemnified Parties hereunder, and to
pay on behalf of Contractor and all of such other Indemnified Parties in any
such action. In the event that any such claims, losses, costs, expenses,
liabilities,
damages
or injuries arise, or any liability therefore is asserted or threatened against
Contractor or any of the other Indemnified Parties. Contractor shall have the
right to withhold from any payments due or to become due to the Subcontractor an
amount sufficient in Contractor’s judgment to protect and indemnify Contractor
and the other Indemnified Parties from and against any and all such claims,
losses, costs, expenses, liabilities, damages or injuries, including but not
limited to legal fees and disbursements, or contractor, in its discretion, may
require Subcontractor to furnish a surety bond satisfactory to Contractor
guaranteeing such protection, which bond shall be furnished by the Subcontractor
within five (5) days after written
demand has been made therefore
9.
Subcontractor shall not assign this contract or any rights or interests
of Subcontractor hereunder (including without limitations any right to any
payment hereunder), or delegate any duty or duties of Subcontractor hereunder,
without first obtaining the written consent of the Contractor.
10.
Subcontractor shall be bound to Contractor by terms of the Prime Contract
and all general conditions, special conditions, specifications and addenda which
constitute a part thereof; Subcontractor shall conform to and comply with all
such drawings and specifications and addenda; Subcontractor shall furnish such
shop drawings or samples as may be required; and Subcontractor shall assume
toward Contractor all the obligations and responsibilities that the Contractor
assumes in and by the aforesaid documents toward the Owner/Lessee, insofar as
they are applicable to the portion or portions of the Work to be provided and/or
performed by Subcontractor hereunder.
11.
Subcontractor shall not employ any person whose employment on or in
connection with this Agreement and/or the job referenced herein may be
objectionable to Contractor, and Subcontractor shall discharge any such person
when Contractor makes such objection known to Subcontractor.
12.
The Subcontractor shall have the right to order in writing the omission
or addition of portions of the Work and/or materials in connection therewith,
when and as portions of the Work or any such materials may be omitted from or
added to the Prime Contract for the project contemplated herein by the architect
and/or Owner/Lessee. In any such event, the parties agree that fair and
equitable deductions or increases (as applicable) shall be made in the contract
price for such omitted or added Work or materials. No extra Work shall be
performed or permitted by Subcontractor, nor shall any modification be made by
Subcontractor to the Work to be performed by Subcontractor hereunder, without,
in each case, the written consent of Contractor given prior to the commencement
of any such other or additional Work or the provision to the project of any
other or additional materials contemplated in connection therewith.
13.
Subcontractor hereby warrants to Contractor and the Owner/Lessee that all
materials and equipment furnished in connection with the Work to be performed by
Subcontractor will be new unless otherwise expressly provided herein, and that
all Work (i) will be good quality (ii) will be performed in a good and
workmanlike manner, (iii) will be free from faults and defects, and (iv) will
conform to the requirements of this Agreement and the applicable plans, drawings
and specifications. All Work performed by Subcontractor that Contractor or the
Owner/Lessee reasonably deems not to conform to the standards of this paragraph
shall be considered defective. Subcontractor’s warranties under this paragraph
will continue, and Subcontractor shall guarantee the Work for a period of one
(1) year after the date of completion of such Work and final acceptance thereof
by Contractor and the Owner/Lessee, unless a longer period for the survival of
Contractor’s warranty is called for under the Prime Contract, in which event
such longer period shall also apply to Subcontractor’s warranty herein.
14.
If at any time notification of any claims has been made in connection
with labor or materials furnished by Subcontractor or in connection with the
Work to be performed by Subcontractor hereunder, or otherwise on account of any
action of, or failure to act by, Subcontractor in the performance of
Subcontractor’s obligations under this Agreement, Contractor, at
Contractor’s option, may, but shall not be obligated to pay such amount or
amounts as may be necessary to fully satisfy any such claim or claims and all
costs and expenses in connection therewith, which sums shall, at Contractor’s
election (i) be immediately reimbursed to Contractor by Subcontractor upon
Contractor’s written demand therefore, or (ii) be withheld by Contractor from
the amounts which would otherwise be payable to Subcontractor. Any such amounts
withheld by Contractor from payments, which would otherwise have been made to
Subcontractor hereunder, shall be deemed to have been paid to Subcontractor is
satisfaction of Contractor’s obligation herein to pay Subcontractor for the
work. Contractor’s right and remedies under this paragraph shall be in
addition to and shall not limit any other rights or remedies of the Contractor
herein or as provided by law.
15.
In the event Subcontractor shall fail to correct, replace and/or
re-execute faulty or defective work done and/or materials furnished in
connection with the Work hereunder, when and as required by Contractor, or shall
fail to complete or diligently proceed with the Work under this Agreement within
the time provided for herein, or if Contractor or any other subcontractor shall
be unable to proceed with its or their portion of the Project of which the Work
is part because of any action or inaction by Subcontractor or any of its agents,
employees, subcontractors or other representatives, or by any person or labor
organization purporting or attempting to represent any agents, employee
subcontractor or other representative of Subcontractor, the Contractor, may, but
shall not be obligated to, immediately upon notice to Subcontractor of
Contractor’s election to do so, (i) correct, replace and/or re-execute such
faulty or defective work, or (ii) take over this contract and complete the Work
and charge the cost thereof to Subcontractor, together with any damages suffered
by Contractor, including but not limited to any damages resulting from any delay
in the performance of the Work.
16.
In the event of any breach of or default under this Agreement by
Subcontractor, all material and equipment of Subcontractor shall be left at the
site for use by Contractor in completing the Work contemplated herein.
Notwithstanding the foregoing, Contractor shall have no obligation to safeguard
or otherwise care for Subcontractor’s materials or equipment.
17.
Subcontractor shall comply with all applicable Federal and State laws,
codes and regulations, and all applicable municipal ordinances and regulations
effective where the Work as to be performed under this Agreement, and shall pay
(i) all costs and expenses connected with such compliance, (ii) all fees and
taxes, including without limitation sales taxes, transaction privilege taxes,
use taxes and similar taxes of any kind (unless waived in writing by Contractor)
and (iii) all taxes imposed by any State or Federal Law for any employment
insurance, pensions, old age retirement funds or any similar purpose.
Subcontractor shall indemnify and hold harmless the Owner/Lessee, the
Contractor, and all other subcontractors from and against any and all liability,
loss cost, damage or expense, including but not limited to court costs and
reasonable attorneys’ fees, occasioned by the failure of the Subcontractor to
comply with the terms of this paragraph.
18.
Contractor’s equipment shall be available to Subcontractor only at
Contractor’s discretion and on mutually satisfactory terms.
19.
Subcontractor shall pay all royalties and license fees, and at its cost,
shall defend all suits or claims for infringement of any patent, copyright or
other similar right involved in the Work of the Subcontractor under this
Agreement. Subcontracrtor agrees to indemnify the Owner/Lessee, the Contractor
and all other subcontractors and hold all such persons harmless from and against
any and all liability, loss, cost, damage or expense, including but not limited
to court costs and reasonable attorneys’ fees, arising out of or related to
any such infringement or claim of infringement.
20.
Subcontractor shall not discriminate among any persons on the basis of
race, color, creed, or national origin.
21.
Subcontractor shall abide by labor agreements applicable to Contractor
insofar as they may apply to workmen employed by Subcontractor.
22.
In the event the contract herein is based upon a unit price, it is
understood and agreed that any quantities and amounts mentioned are approximate
only and may be more or less at the same unit price, and subject to final
determination based upon final pay quantities as received by the Contractor
according to conditions that may be stipulated in the plans and specifications,
or upon such quantities and amounts as may be determined by the Contractor.
23.
In the event of any dispute arising out of this agreement, the dispute
shall be resolved by submission to arbitration through the American Association,
Phoenix, AZ. for the resolution in accordance with its Construction Rules before
one arbitrator only. The Arbitrator shall have the authority to award reasonable
attorney’s fees and costs to the prevailing party. The award of the Arbitrator
may be confirmed by an application for judgment before the Maricopa County
Superior Court or any other court with jurisdiction over the dispute.
24.
Subcontractor shall pay attorney’s fees incurred by the Contractor in
enforcement of the provisions of this Agreement or the collection of damages for
its breach.
25.
Subcontractor is solely responsible for the prevention of accidents on or
in the vicinity of its Work, whether or not Contractor has established a safety
program for the project. Subcontractor shall establish a safety program
implementing safety measures, policy and standards which conform to those
required or recommended by any government and quasi-governmental authorities
having jurisdiction and by Contractor and the Owner/Lessee and include but are
not limited to safety requirements imposed by the contract documents.
Subcontractor shall comply with all reasonable recommendation of insurance
companies having interests in the project, and shall stop any part of the work,
which Contractor deems unsafe until corrective measures satisfactory to
Contractor have been taken. Subcontractor shall immediately inform Contractor of
any dangerous conditions observed by Subcontractor, whether caused by
Subcontractor or caused by others on the project, and shall immediately report
to Contractor steps taken by Subcontractor to correct any such condition caused
by Subcontractor. Contractors’ failure to stop unsafe practices engaged in by
Subcontractor shall not relieve Subcontractor of the responsibility therefore.
Subcontractor shall notify Contractor immediately following any accident, and
shall promptly confirm the notice in writing and provide Contractor a detailed
written report thereof. Subcontractor shall indemnify the Owner/Lessee and
Contractor and hold such parties harmless for, from and against any and all
liability, loss costs, damages or expense, including but not limited to court
costs, reasonable attorney’s fees and any fines, levies or assessments by any
governmental or quasi-governmental agency, arising out of or relating to any
failure by Subcontractor to comply with any such safety requirements, or
Subcontractor’s negligent failure to notice a dangerous or unsafe condition on
the job site and promptly take steps to either correct the condition or bring
that condition to the attention of Contractor. The indemnification described
here incorporates the terms and conditions of the indemnification described in
paragraph A (8) above.
B. CONTRACTOR OBLIGATIONS:
The
Contractor agrees as follows:
1.
The Contractor hereby employs Subcontractor to do the Work described
herein, subject to the terms and provisions set forth herein.
2.
For the full, faithful, and prompt performance of the Subcontractor’s
obligations under this Agreement, and the completion of the Work in accordance
with the terms of this Agreement, Contractor agrees to pay Subcontractor the
Contract Sum described in subcontract agreement hereto. Estimated billings based
upon the percentage of the Work actually completed (as determined by any
inspection or inspections Contractor reasonably deems necessary), less retainage
as set forth above, shall be paid ten(10) days after Contractors receives
payment. .Contractor obligation to make any periodic or other payments hereunder
shall be conditioned upon the compliance by Subcontractor with the following
requirements:
a.
Subcontractor shall have all completed portions of the Work billed in a
professional manner, and all invoices for such completed portions of the Work
shall be on a form acceptable to Contractor and shall be submitted no late than
25th day of each month.
b.
Subcontractor shall supply Contractor with (i) an unconditional lien
release(s) or a joint check agreement from each of Subcontractor’s suppliers,
and (ii) Subcontractor’s own conditional lien release with respect to the Work
in question.
c.
If applicable, Subcontractor shall supply Contractor with certified
payroll reports as required pursuant to the Davis-Bacon Act, showing that all
employees have been paid the required wage. A subcontractor that is
self-employed and has performed the Work personally must complete the proper
form with respect thereto.
d.
Subcontractor shall have supplied Contractor with Subcontractor’s
Federal Employer Identification Number or Social Security Number, as applicable,
and Subcontractor’s State Contractor’s License Number.
e.
Subcontractor shall have supplied Contractor with all insurance
certificates required under paragraph A (7) hereof.
f.
If applicable, Subcontractor shall have obtained and provided to
Contractor performance and payment bonds with sureties and in a form acceptable
to Contractor.
In order to receive retention amounts at such time as the project
of which the Work is part has been completed and approved and final payment has
been received by Contractor, Subcontractor shall have satisfied the following
additional conditions:
a.
Subcontractor shall have completed all punch list items, and all the
completion thereof by Subcontractor shall have been approved by Contractor.
b.
Subcontractor shall have provided warranty materials acceptable to
Contractor and supplied Contractor with all applicable owner’s manuals,
instructions and the like.
c.
Subcontractor shall have properly invoiced Contractor for all retention
amounts on forms acceptable to Contractor. Retention payments will not be
processed unless and until Contractor has received an invoice therefore.
3. Contractor
shall include in all periodic estimates to the Owner/Lessee the value of all
work, labor, and materials of the Subcontractor incorporated into the project
covered by this Agreement for which estimates have been furnished by the
Subcontractor and approved by the Contractor, and shall pay Subcontractor the
amount received by Contractor on account of Subcontractor’s work to extent of
Subcontractor’s interest therein:
4.
Except in cases in which Contractor’s failure to pay is excused as a
result of any breach of, or default under, this Agreement by Subcontractor,
Contractor’s failure to pay Subcontractor any sums to which Subcontractor is
entitled under this Agreement, when and as such sums are due, shall, in addition
to and not in limitation of any other right of Subcontractor herein, cause
Subcontractor to become entitled to (i) suspend all work and shipments during
the continuance of such default on the part of the Contractor and (ii) an
extension of the time for performance of the Work hereunder for a period equal
to the period of such suspension. Subcontractor acknowledges, however, that
Contractor may withhold payment if there is a breach of or default under this
Agreement by Subcontractor or if Subcontractor shall fail to pay for any
material and/or labor.