MASTER SUBCONTRACT AGREEMENT
THIS AGREEMENT, made this 27th day of June 2019, by and between (CONTRACTOR NAME) hereinafter called Subcontractor, including its heirs, executors and successors, and Vino Design Build, hereinafter called Contractor, including its heirs, executors, successors, and assigns, WITNESSETH:
SECTION 1. MASTER AGREEMENT. Contractor anticipates entering into contracts from time to time for the construction of various projects (each, a “Project”) for the owners thereof. Contractor also anticipates desiring to retain the services of Subcontractor in connection with certain of the Projects. Rather than enter into a separate subcontract for each Project, Contractor and Subcontractor desire to enter into this Master Subcontract Agreement to set forth the respective terms and conditions that will apply to each Project. The description of each Project, the scope of services to be provided by Subcontractor, the compensation to be paid Subcontractor in connection therewith, and any other Project- specific information will be set forth in a separate Master Subcontract Work Authorization (each, a "Work Authorization") in the form of Attachment A hereto. Each Work Authorization, when executed by Contractor and Subcontractor, shall together with this Master Subcontract Agreement be considered one separate contract (the "Subcontract") governing the rights and relations of the parties with respect to that Project.
SECTION 2. WORK TO BE PERFORMED. The scope of the services to be provided by Subcontractor for each Project shall be set forth on the Work Authorization for that Project. The form of Work Authorization is attached hereto as Attachment A and incorporated by this reference.
SECTION 3. PAYMENTS. Contractor shall pay Subcontractor for furnishing the materials and performing the work, as specified herein and in the applicable Work Authorization, the compensation set forth in such Work Authorization, subject to additions and deductions for changes agreed upon or determined as hereinafter provided. Partial payments will be made to Subcontractor in an amount equal to the value of completed work in the schedule of values and materials incorporated in the construction as estimated by Owner’s Representative, less previous payments, but such partial payments shall not become due to Subcontractor until 7 days after Contractor receives payment from Owner on account of Subcontractor’s invoices. Upon complete performance of this Subcontract by Subcontractor and final approval and acceptance thereof by Owner, Contractor will make final payment to Subcontractor of the balance due under this Subcontract within 35 days after full payment for such work and materials has been received by Contractor from Owner. However, if a progress and/or final payment from Owner for the work is not received by Vino Design Build, through no fault of Subcontractor, Vino Design Build will make payment to Subcontractor after Vino Design Build
has afforded a reasonable period of time to obtain payment from Owner through either litigation or arbitration.
No partial payment to Subcontractor shall operate as approval or acceptance of work done or materials furnished under this Subcontract. If this Subcontract provides for payment for work to be performed on a unit price basis, Subcontractor agrees to be bound by Owner’s measurement of the quantity of work; however, if Owner does not provide any measurement of work, Subcontractor agrees to be bound by Contractor’s measurement of the work. Any partial payment or payments made by Contractor to Subcontractor will be subject to final audit and adjustment and Subcontractor agrees to reimburse Contractor for any overpayment. Acceptance by Subcontractor of final payment shall release Contractor and its surety of all claims arising under or by virtue of this Subcontract except those claims previously submitted in writing by Subcontractor. As between the parties hereto and except as expressly provided otherwise in this Agreement, Subcontractor accepts the price or prices set forth herein as full compensation for doing all work and furnishing all materials contemplated and embraced in this Subcontract; for all loss or damage arising out of the nature of the work aforesaid or from the action of the elements or from any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the work until its acceptance by Owner; for all risks of every description connected with the work; for all expense incurred by or in consequence of the suspension or discontinuance of the work; and for faithfully completing work and the whole thereof in the manner and according to the requirements of Contractor and Owner and Owner’s Representative.
Contractor may deduct from any amounts due or to become due to Subcontractor any sum or sums owing by Subcontractor to Contractor whether or not arising under this Subcontract and in the event of any breach by Subcontractor of any provision or obligation of this Subcontract, or in the event of the assertion by other parties of any claim of lien against Contractor or its surety or the construction site arising out of Subcontractor’s performance of this Subcontract, Contractor shall have the right, but is not required, to retain out of any payments due or to become due to Subcontractor an amount sufficient to completely protect Contractor from any and all loss, damage or expense therefrom until the situation has been remedied or adjusted by Subcontractor to the satisfaction of Contractor.
Contractor reserves the right to make payment by joint check or by direct check to Subcontractor and to Subcontractor’s material men or sub-subcontractors or any person who has right of action against Contractor or its surety under any law. Contractor reserves the right to determine the manner and amount of payment to be made.
Subcontractor shall furnish, if requested by Contractor, sworn affidavits from time to time, in accordance with the form provided by Contractor, which shall state amounts due or to become due and amounts paid to suppliers and other parties contractually related with Subcontractor with respect to labor and materials furnished or to be furnished under this Subcontract.
Subcontractor agrees and covenants that money received for the performance of this Subcontract shall be used solely for the benefit of persons and firms supplying labor, materials, supplies, tools, machines, equipment, plant or services exclusively for the project in connection with this Subcontract and having the right to assert liens or other claims against the land, improvements or funds involved in the project or against any bond or other security posted by Contractor or Owner, that any money paid to Subcontractor pursuant to this Subcontract shall immediately become and constitute a trust fund for the benefit of said persons and firms, and shall not in any instance be directed by Subcontractor to any other purpose until all obligations arising hereunder have been fully discharged and all claims arising therefrom have been fully paid.
Subcontractor agrees, as a condition precedent to payment hereunder, to furnish Contractor with such partial or final releases of claims or waivers of Lien as Contractor may from time to time request.
If at any time Contractor, at its sole discretion, shall determine that Subcontractor’s financial condition has become unstable or unsatisfactory, Subcontractor shall furnish additional security satisfactory to Contractor within three days after written demand therefor is delivered to Subcontractor, and, in default of furnishing said additional security, Contractor shall have the option to terminate Subcontractor’s right to proceed or to initiate such other action as Contractor may, at its sole discretion, deem necessary for the protection or preservation of its interest and the prevention of delay in the progress of work on the Project, including but not limited to the work to be performed by Subcontractor hereunder. In the event of such cancellation, the rights of Contractor shall be the same as if Subcontractor had willfully refused to further perform the Subcontract.
All progress billings must be submitted by the 25th of each month and will be calculated based upon Subcontractor’s schedule of values. Billings received after the 25th of the month will be processed the following month.
Subcontractor will provide a copy of its Injury and Illness Prevention Program (IIPP) to Vino Design Build in digital format.
SECTION 4. RETAINAGE REDUCTION. If at any time prior to final payment hereunder Owner reduces the amount of retainage held from Contractor, Contractor may, at its sole discretion, without the consent of Subcontractor’s Surety, reduce accordingly the retained percentage withheld from Subcontractor.
SECTION 5. CHANGES AND EXTRA WORK.
(a) Contractor may, at any time by written order and without notice to Subcontractor’s Surety, make changes in, additions to and omissions from the work to be performed and materials to be furnished under this Subcontract, and shall make an appropriate adjustment in the subcontract price and time of performance. If Subcontractor shall disagree with such adjustment, Subcontractor shall give written notice to contractor and any further adjustment shall be agreed upon in writing by the parties hereto, but Subcontractor shall immediately proceed with the performance of this Subcontract as so changed. Any change or modification shall be subject to all the terms and conditions of this Subcontract.
(b) If Owner shall order any changes or extra work, including additions, reductions or deletions, in the work to be performed hereunder or within the general classification of any work to be performed hereunder, Subcontractor will upon written order of Contractor perform the work required, and any adjustment in compensation or in the time for performance shall be as the parties agree. If the parties are unable to agree, Subcontractor shall nevertheless proceed with such work and shall give prompt written notice thereof to Contractor. The amount of compensation and the time of performance shall be adjusted only to the extent allowed by Owner. Subcontractor shall comply with and be bound by any notice provisions and claims procedure, including arbitration, contained in the General Contract or required by Owner. If any claim of Subcontractor is presented to Owner together with claims of Contractor or others, Contractor’s determination as to Subcontractor’s share of any award by Owner shall be binding and conclusive on Subcontractor.
(c) Any claim for adjustment of the subcontract price or time of performance must be made in writing within ten days from the date such change is ordered. No increase or decrease in the subcontract price or time of performance shall be binding on Contractor unless agreed upon in writing.
(d) All requests by Contractor for quotation for changes to the scope of work must be returned no later than five (5) working days from the issuance date of the request. Contractor will assign a reference number to each change and Subcontractor shall use Reference Number when submitting its quotation.
(e) Subcontractor must obtain written authorization from Contractor’s Project Manager for any extra work prior to incursion of any expenses. The Project Superintendent is not authorized to approve changes in scope. Any costs incurred on a time and material basis must be accompanied by work tags signed on a daily basis by Contractor’s Project Manager or Project Superintendent.
(f) Subcontractor will be permitted mark-up over direct costs for changes in the work beyond the scope of the Contract Documents and this agreement shall not exceed 10%. No mark-up will be allowed for overhead or profit on the premium portion of overtime worked.
SECTION 6. CONTRACT DOCUMENTS AND SITE.
The Subcontract Documents consist of: (i)the Subcontract; (ii) the Prime Contract, consisting of the Agreement between the Owner and Contractor and any other Contract Documents enumerated therein, including Conditions of the Prime Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Agreement between the Owner and Contractor, any Modifications issued subsequent to the execution of the Agreement between the Owner and Contractor, whether before or after the execution of the Subcontract, and other Contract Documents, if any, listed in the Owner-Contractor Agreement; and (iii) Modifications to this Subcontract issued after execution of the Subcontract. These form the Subcontract, and are as fully a part of the Subcontract as if attached to the Subcontract or repeated herein. The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Subcontract Documents, other than Modifications issued subsequent to the execution of the Subcontract will be listed in the Work Authorization or attached thereto. Subcontractor shall not deviate from any of the requirements of the Contract Documents without prior written approval from Contractor.Materials shall not be substituted for those specified, nor shall “or equal” items be furnished pursuant to the Contract Documents without Contractor’s prior written approval.
SECTION 7. PROGRESS OF WORK AND ORDER OF PERFORMANCE. Time is of the essence of this Subcontract. Subcontractor shall furnish all materials, labor, tools, equipment and supplies necessary for the performance of this Subcontract in a proper, efficient and workmanlike manner and so as to perform the work in accordance with and within the time specified in progress schedules designated by Contractor or any revisions thereof. Subcontractor shall prosecute the work in a prompt and diligent manner whenever such work, or any part of it, becomes available, or at such other time or times as Contractor may direct, and so as to promote the general progress of the entire construction, and shall not interfere with or hinder to work of Contractor or any other Subcontractor. If Contractor shall deem it necessary, Subcontractor, at its own expense and on demand of Contractor, shall provide additional work forces, overtime or additional shifts and shall expedite the furnishing of materials so as to meet the progress schedule. Any materials that are to be furnished by Subcontractor hereunder shall be furnished in sufficient time to enable Subcontractor to perform and complete its work within the time or times provided for herein. Subcontractor shall reimburse Contractor for any and all damages suffered by or assessed against Contractor, including liquidated damages, which are attributable to or caused by Subcontractor’s failure to furnish the materials or to perform the work required by the Subcontract within the time fixed or in the manner provided for herein. Payment of such damages shall not release Subcontractor from its obligation to otherwise fully perform this Subcontract. Upon written request by Contractor, Subcontractor shall furnish to Contractor such evidence as Contractor may require relating the Subcontractor’s ability to fully perform this Subcontract in the manner and within the time specified herein.
If Subcontractor fails to comply or becomes disabled from complying with the provisions herein as to character and time of performance, and the failure is not corrected within forty-eight hours after written request by Contractor to Subcontractor, Contractor may, without prejudice to any other right or remedy, take over and complete the performance of the Subcontract at the expense of Subcontractor, or Contractor may, without taking over the work, furnish the necessary materials and may employ any other person or persons including another subcontractor to finish the work and provide the materials therefore, all without liability on the part of Contractor for any damage, wear and tear, depreciation, theft, action of the elements, acts of God, fire, flood, vandalism, or other injury or damage to said materials, tools, and appliances and in case of such discontinuance of Subcontractor’s employment by Contractor, Subcontractor shall not be entitled to receive any further payment under this Subcontract until the said work shall be wholly finished and Contractor shall have received payment in full therefore from Owner, at which time, if the unpaid balance of the amount to be paid under this Subcontract exceeds the expenses incurred by Contractor in finishing the work, such excess shall be paid by Contractor to Subcontractor; but if such expense shall exceed such unpaid balance, then Subcontractor shall pay the difference to Contractor. As used in this Section the work “expense” shall mean actual cost to Contractor plus fifteen per cent (15%) for overhead. The expense incurred by Contractor as herein provided, either for furnishing materials or for finishing the work, and any damages incurred as a result of such default, shall be chargeable to and paid by Subcontractor and Contractor shall have a lien upon all materials, tools and appliances taken possession of, as aforesaid, to secure the payment thereof.
Contractor shall have the right to enter upon the premises and take possession, for the purpose of completing the work included in this Subcontract, of all materials, tools and appliances thereon.
Subcontractor shall be considered disabled from prosecuting the work covered by this Subcontract if Subcontractor’s interest herein, or any part thereof, be assigned or transferred in any manner, either voluntarily or involuntarily or by operation of law, or if a petition under the Bankruptcy Act or to appoint a Receiver is filed by or against, or if Subcontractor dies or becomes insolvent or (if an individual) dies or (if a business) dissolves or terminates its existence.
Subcontractor is to contact Contractor’s superintendent a minimum of one (1) week in advance to schedule all deliveries to the Project and/or to coordinate a laydown area for materials, sheds, trailer(s), and etcetera.
Subcontractor shall keep as-built record drawings current and accurate to reflect work progress. Contractor shall review record drawings monthly. Non-current and/or inaccurate drawings will be basis for withholding of progress payment until drawings are updated or corrected by subcontractor.
Subcontractor shall comply with all applicable local, state, federal and national codes, ordinances, laws, etc., in performing its work.
SECTION 8. SUBMITTALS. Subcontractor is required to provide complete submittals in accordance with the Contract Documents in a time frame which allows for owner/architect review, such that they do not delay the completion of the work. Submittals rejected by the owner/architect for incompleteness or non-compliance with the Contract Documents does not constitute grounds for delay to Subcontractor’s work. Subcontractor is expected to recoup all time lost due to resubmittals.
Submittal Quantities:
Shop Drawings: Product Data: Samples:
Work Plans and Reports (if applicable):
(6) Black lines or pdf digital copies (6) Copies or pdf digital copies
(3) Sets
(3) Sets or pdf digital copies
SECTION 9. DELAYS, EXTENSIONS OF TIME, STOPPAGE OR SUSPENSION OF WORK, DISPUTES.
If Subcontractor’s performance of this Subcontract is delayed or interfered with by acts of Owner, Contractor or other subcontractors, it may request an extension of time for the performance of same, as hereinafter provided, but except as otherwise permitted by law, Subcontractor shall not be entitled to any increase in the Subcontract price or to damages or additional compensation as a consequence of such delays. If a progress schedule is furnished by Contractor to Subcontractor, it shall be solely for Contractor’s benefit; however, Subcontractor must be ready to perform at the times indicated in the progress schedule. Contractor makes no representation that it will be ready for Subcontractor at the times indicated in said schedule regardless of whether delays may be within the control of Contractor. As required by Contractor, Subcontractor shall submit to Contractor progress schedules for the work subcontracted, or at Contractor’s election, cooperate in the preparation of a progress schedule.
No allowance of an extension of time, for any cause whatever, shall be granted to Subcontractor unless Subcontractor shall have made written request upon Contractor for such extension within forty- eight hours after the commencement of the delay and unless Contractor and Subcontractor have agreed in writing upon the allowance of additional time to be made. If such extension of time is requested because of Owner caused delays or delays allowable under the General Contract, any extension of time shall be granted to Subcontractor only to the extent allowed by Owner.
If Owner, with or without cause, shall terminate the General Contract or shall stop or suspend work under the General Contract, or if Owner shall fail to pay when due any sum payable under the General Contract, Contractor may order Subcontractor to stop or suspend work hereunder and Contractor shall be liable to Subcontractor for any such stoppage or suspension only if and to the extent that Owner shall be liable to Contractor therefor. Contractor will pay to Subcontractor the value of work that Subcontractor has completed before the work was stopped or suspended but only if and to the extent that Owner shall have paid Contractor for such work of Subcontractor.
In the event of any dispute or claim between Contractor and Owner which directly or indirectly involves the work required to be performed by Subcontractor under this Subcontract or in the event of any dispute or claim between Contractor and Subcontractor which directly or indirectly involves a claim against Owner for the either additional compensation or an extension of time under the General Contract, Subcontractor agrees to be bound to Contractor and Contractor agrees to be bound to Subcontractor to the same extent that Contractor is bound to Owner by the terms of the General Contract and by all decisions, findings, or determinations made thereunder, whether by the person so authorized in the General Contract, or by an administrative agency or court of competent jurisdiction or by arbitration, whether or not Subcontractor is a party thereto. If any dispute or claim is prosecuted or defended by Contractor, and Subcontractor is not directly a party or litigant, Subcontractor agrees to cooperate fully with Contractor and to furnish all documents, statements, witnesses and other information required by Contractor for such purpose, and shall pay or reimburse Contractor for all expenses and costs, including reasonable attorney’s fees, incurred in connection therewith to the extent of Subcontractor’s interest in such claim or dispute. It is expressly understood and agreed in connection with the determination of such claims or disputes that, as to any and all work done and agreed to be done by Subcontractor, and as to any and all materials or services furnished or agreed to be furnished by Subcontractor, and as to any and all damages, if any, incurred by Subcontractor in connection with the project, Contractor shall never be liable to Subcontractor to any greater extent than Owner is liable to Contractor.
It is further specifically agreed by the parties hereto that no claim, dispute or controversy shall interfere with the progress and performance of work required to be performed under this Subcontract and that Subcontractor shall proceed as directed by Contractor in all instances with its work under the Subcontract and that any failure of Subcontractor to comply herewith and to proceed with its work shall automatically be deemed a breach of this Subcontract entitling Contractor to all remedies available in the event of breach.
SECTION 10. CONTRACTOR’S REMEDIES.
Event of Default. For purposes of this Subcontract, any of the following shall be an Event of
Default and all Events of Default shall be considered material breaches of this Subcontract.
Subcontractor’s failure to (i) conform to or comply with any provision of this Subcontract or the Contract Documents or (ii) properly and diligently prosecute its work to completion in a timely fashion;
The filing of liens or claims for payment by Subcontractor with respect to services for which Subcontractor has already received payment, or the filing of liens or claims for payment by any of its sub- subcontractors, materialmen, suppliers, or agents which (i) affects Owner, Contractor and/or the Project and (ii) arises out of Subcontractor’s scope of work;
Any act, omission or willful misconduct giving rise to an obligation of Subcontractor to indemnify Contractor for a claim, loss or liability whether by operation of law or pursuant to the provisions of this Subcontract;
Contractor’s reasonable doubt that Subcontractor can complete its work hereunder (i) within the time required or (ii) for the then unpaid balance of the Subcontract;
Subcontractor’s failure to make when due any payments or deposit required by this Subcontract within the time and in the manner required;
The disapproval by Contractor of any construction work performed by Subcontractor as being not in compliance with the Contract Documents, as being contrary to good construction practice, and/or as being otherwise unsatisfactory;
If Subcontractor at any time refuses or neglects to supply enough properly skilled workers and proper materials, or fails to properly and diligently prosecute the work covered by this Subcontract;
The Bankruptcy, Insolvency, or, if Subcontractor is an individual, Incapacity of Subcontractor.
If Subcontractor is a corporation, any dissolution, merger, consolidation, or other reorganization of Subcontractor, or the sale or other transfer of a controlling percentage of the capital stock of Subcontractor or the sale of more than fifty percent (50%) of the value of the assets of Subcontractor. The phrase “controlling percentage” means the ownership of, or the right to vote, stock possessing more than fifty percent (50% of the total combined voting power of all classes of Subcontractor’s capital stock issued, outstanding, and entitled to vote for the election of directors;
If Subcontractor is a partnership, a withdrawal or change of any partner or partners who own or have the right to vote, individually or in the aggregate, more than 50% of the equity of the Partnership, or the dissolution of the partnership, whether voluntary involuntary or by operation of law;
An assignment or attempted assignment by Subcontractor of its rights and/or obligations under this Subcontract in violation of this Subcontract; and
Subcontractor is otherwise guilty of material breach of this Subcontract.
Remedy. At any time on or after the occurrence of an Event of Default which is susceptible to being cured, Contractor may demand in writing that Subcontractor cure the Event of Default (the “Notice of Default”). If Subcontractor does not commence the cure of such Event of Default within forty-eight (48) hours of receipt of the Notice of Default, or if such Event of Default is not susceptible to being cured, Contractor may, at its sole option, exercise one or more of the following remedies (which are non- exclusive and cumulative with any other remedy Contractor may have pursuant to this Agreement, in equity, or at law):
Withhold or nullify, in whole or in part, any payment to Subcontractor to the extent Contractor deems necessary to satisfy any past, present, or future claims, losses, or liabilities which may arise out of said Event of Default, and thereafter apply the amounts so withheld or nullified, on Subcontractor’s behalf, to pay such claims, losses, or liabilities which do arise and credit the amounts so applied against the Subcontract Price;
Directly make any payment on Subcontractor’s behalf which Contractor deems necessary, including payment to any supplier or any labor union trust fund, and credit the amount so paid against the Subcontract Price;
Make any payment due Subcontractor payable jointly to Subcontractor and any other person or entity and require restrictive endorsement(s) on any such joint payment in the form and to the extent Contractor deems appropriate;
Terminate this Subcontract;
Cure, on Subcontractor’s behalf, any Event of Default to the extent and in the manner Contractor deems necessary and apply the “Cost” (as defined below) thereof against the Contract Price; or
Without termination of this Agreement, (i) terminate Subcontractor’s right to proceed with its work; (ii) eject Subcontractor from the job site; (iii) take possession of all materials, tools, and equipment supplied or used by Subcontractor in connection with its work for the purpose of completing or causing to be completed any remaining work to be done by Subcontractor pursuant to this Agreement; (iv) cure or cause to be cured said Event of Default and/or complete or cause to be completed any remaining work to be done by Subcontractor pursuant to this Agreement; (v) apply the Cost thereof against the Subcontract Price and (vi) suspend payment of any amounts to which Subcontractor may then or thereafter be entitled until the date for payment of the Retention;
Supply such number of workers and quantity of materials, equipment and other facilities as Contractor deems necessary for the completion of Subcontractor’s work, or any part thereof which subcontractor has failed to complete or perform, and charge the cost thereof to Subcontractor. Who shall be liable for the payment of same including fifteen percent (15%) for overhead, ten percent (10%) for profit, and actual attorney’s fees incurred as a result of Subcontractor’s failure of performance;
Contract with one or more additional contractors to perform such part of Subcontractor’s work as Contractor shall determine will provide the most expeditious completion of the total work and charge the cost including overhead and profit thereof to Subcontractor; and
Withhold payment of any monies due Subcontractor pending corrective action to the extent required by and to the satisfaction of Contractor.
In the event of an Event of Default resulting in an emergency that affects the safety of persons or property, Contractor may proceed as provided herein without giving Notice.
If at any time the Costs incurred by Contractor in connection with any Event of Default, including attorneys’ fees, design and engineering fees and other out-of-pocket expenses, exceed the then unpaid balance of the Subcontract Price, then (i) Contractor shall have no further obligation to make any payment to Subcontractor and (ii) the amount of such excess (the “Excess Cost”) shall be immediately due and payable to Contractor by Subcontractor with interest payable at the then highest legal rate from the date the Excess Cost was expended. Subcontractor specifically agrees (i) Contractor shall have a lien on all materials, tools, appliances, or other assets of Subcontractor, including but not limited to accounts receivable and other contract rights, to secure the payment of any Excess Cost and (ii)Subcontractor shall execute and/or acknowledge on demand by Contractor any document or instrument necessary to perfect such lien and security interest.
Whenever under the Contract Documents Subcontractor is required to perform or correct any portion of the work or undertake or perform any other act at the sole cost and expense of Subcontractor and/or without cost or expense to Contractor, then all such costs and expenses shall be borne by Subcontractor without any increase in the Subcontract Price. In addition, Contractor shall have the right to offset against the Contract Sum any costs or expenses including ,but not limited to, attorneys’, architects’ and consultants’ fees, incurred by Contractor in connection therewith. In the event that all monies due Subcontractor under the Contract Documents have been paid to Subcontractor when such costs or expenses are incurred by Contractor, or are otherwise insufficient to cover such offset, the Subcontractor shall promptly reimburse Contractor for all such costs and expenses immediately upon demand by Contractor. The provisions of this section are in addition to and not in lieu of other remedies or specific provisions of the Contract Documents.
If Subcontractor is not performing in accordance with the schedule of work at the time of entering an order for relief under applicable bankruptcy and/or insolvency law, or at any subsequent time, Contractor, while awaiting the decision of Subcontractor or its trustee to reject or to accept this Agreement and provide adequate assurance of its ability to perform hereunder, may avail itself of such remedies under this section as are reasonably necessary to maintain the schedule of work including:
Contractor may offset against any sums due or to become due Subcontractor all costs incurred in pursuing any of the remedies provided hereunder, including, but not limited to, reasonable overhead, profit and actual attorney’s fees incurred as a result of Subcontractor’s non-performance; and
Subcontractor shall be liable for the payment of any amount by which such expense may exceed the unpaid balance of the Subcontract Price.
SECTION 11. RESPONSIBILITY FOR THE WORK.
Subcontractor shall be responsible for its own work, property and materials until completion and final acceptance of the General Contract and release of responsibility by Owner, and shall bear the risk of any loss or damage until such acceptance. In the event of loss or damage, Subcontractor shall proceed promptly to make repairs or replacement of the damaged work, property or materials at its own expense, as directed by Contractor. Subcontractor waives all rights Subcontractor might have against Contractor for loss or damage to Subcontractor’s work, property or materials.
SECTION 12. INSURANCE. Subcontractor and its subcontractors of every tier shall, at its own expense, maintain in effect at all times during the performance of the work under the contact and for a period of ten years from substantial completion of the Project not less than the following coverage and limits of insurance which shall be maintained under forms of policies and from companies satisfactory to the Contractor. The insurance company must have a financial rating of at least A- VII as defined by A.M. Best Company. Prior to performing any Work on any project Subcontractor shall provide Contractor with a Certificate of Insurance that complies with all of the requirements herein. Copies of policies shall be provided to Contractor when requested.
(a)Workers’ Compensation and Employers Liability Insurance
(i) Workers’ Compensation insurance shall be provided as required by any applicable law or regulation.
(ii) Employers Liability insurance shall be provided in amounts not less than: $1,000,000 each accident for bodily injury by accident
$1,000,000 policy limit for bodily injury by disease
$1,000,000 each employee for bodily injury by disease
(iii) A waiver of subrogation endorsement is required.
General Liability Insurance
(b)Subcontractor shall carry Commercial General Liability insurance covering operations by or on behalf of Subcontractor, providing insurance for bodily injury liability and property damage liability for the limits of liability indicated below and including coverage for:
(i) Premises and operations
(ii) Products and completed operations
(iii) Contractual liability insuring the obligations assumed by Subcontractor in this Agreement
(iv) Broad form property damage (including completed operations)
(v) Personal injury liability
(vi) Explosion, collapse, underground and subsidence hazards
(vii) A waiver of Subrogation endorsement is required
(c) Limits of Liability
(i) On Subcontractor’s Occurrence form Commercial General Liability policy, the limits of liability shall be not less than:
$1,000,000 each occurrence (combined single limit for bodily injury and property damage)
$1,000,000 for personal injury liability
$2,000,000 aggregate for products-completed operations
$2,000,000 General Aggregate
The “general aggregate” limit shall apply separately to Subcontractor’s work under this contract.
(ii) The following coverage form is required: Commercial General Liability (Occurrence) ISO insurance form CG 0001.
(iii) A “claims made” policy form is not acceptable.
(iv) A “modified occurrence” policy is not acceptable.
(v) No self-insured retention shall be permitted and the deductible shall not exceed $10,000.
(vi) If the policy does not have an endorsement providing that the General Aggregate Limit applies separately to this Project or if Defense Costs are included in the aggregate limits, then the required aggregate limits shall be $5,000,000.00.
(vii) No exclusions for residential work if performing residential operations. If any residential exclusions exist a copy must be provided.
(d) Additional Insured Endorsement
(i) The Commercial General Liability and Auto Liability policies shall include a provision or endorsement signed by the insurance carrier issuing the policy naming Contractor and its Officers, Owners and Employees, the Owner and all of its directors, property managers, employees, agents and representatives, including Architect and Architect’s consultants, and all additional parties named in Paragraph of the Work Authorization as additional insureds with respect to liabilities arising out of Subcontractor’s performance of the work under this Subcontract. The policy shall be endorsed to stipulate that the insurance afforded the additional insureds shall apply as primary insurance and that any other insurance maintained by Contractor or Owner shall be excess only and shall not be called upon to contribute with this insurance. The aforementioned General Liability endorsement shall include ongoing operations and completed operation coverage. Endorsements with limiting language similar to “when you and such person or organization have agreed in writing” or “with whom you have agreed in a written contract” will NOT be acceptable.
(ii) Severability of Interest. The General Liability policy shall respond separately to each named insured on the project.
(e) Automobile Liability Insurance
(i) Subcontractor shall carry Automobile Liability insurance, including coverage for all owned, hired and non-owned automobiles.
(ii) The limits of liability shall be not less than $1,000,000 combined single limit each accident for bodily injury and property damage.
(iii) An additional insured endorsement is required for all additional parties named in the Work Authorization.
(iv) A waiver of subrogation endorsement is required.
(f) Property and Equipment Insurance
(i) Subcontractor is solely responsible for its own work and equipment.
(ii) Subcontractor shall insure, secure and protect its equipment, work and material from damage until final acceptance by the Owner.
(iii) The Subcontractor shall be solely responsible for any loss or damage to respective work, materials, or construction until final acceptance by the Owner.
(g) Hazardous Materials:
If Subcontractor and/or its subcontractors or suppliers, regardless of tier, perform remediation of Hazardous Material, or if their operations create an exposure to any Hazardous Material as such term is defined in Section 14, Subcontractor and its subcontractors and suppliers must obtain a “Contractor's Pollution Liability” policy with limits not less than $1,000,000 per occurrence and $2,000,000 aggregate for Bodily Injury, Personal Injury, and Property Damage, naming Contractor and Owner as additional insureds. If Subcontractor or its subcontractors or suppliers haul Hazardous Material (including, without limitation, waste), they must carry Auto Liability insurance with a $1,000,000 Combined Single Limit for Bodily Injury and Property damage applicable to all Hazardous Material hauling vehicles, and include MCS 90 and CA9948.
(h) Professional Liability:
Any subcontractor performing work that includes design/build work or services shall obtain a Professional Liability Insurance Policy. Design/build work includes, without limitation, design/build work with respect to mechanical, structural, plumbing, and fire sprinkler systems. Coverage must allow for a minimum of two years following the completion of the project. If Owner or Contractor elects to purchase a project design policy, Subcontractor's policy shall be endorsed to provide excess coverage only.
(i) Certificates of Insurance
(i) Certificates of Insurance, as evidence of the insurance required by this Agreement, shall be furnished by Subcontractor to Contractor before any work is commenced by Subcontractor. All such certificates shall have any required endorsements attached to them and shall be signed by the carrier issuing the policy and/or its duly authorized representative. By providing such certificates and/or endorsements Subcontractor is warranting and representing to Contractor that they have been issued in accordance with all the requirements of this Subcontract.
(ii) The Certificates of Insurance shall provide that there will be no cancellation or reduction of coverage without thirty days (30) prior written notice to Contractor.
(iii) Subcontractor shall maintain CGL coverage for itself and all additional insureds for the duration of the project, and maintain Completed Operations coverage for itself and each additional insured for at least 3 years after completion of the work or the length of the state statute of repose, whichever is greater. Completed Operations coverage shall be maintained for at least ten (10) years if the project is residential or habitational.
Any deductibles must be declared to and approved by Contractor
(j) Insurance Requirements for Tier Subcontractors
(i) The Subcontractor shall ensure that all tiers of their Subcontractors shall procure and maintain insurance in like form and amounts including the Additional Insured requirements, all as set forth above. Certificates of insurance evidencing such coverage must be provided prior to the subcontractors of any tier entering the jobsite.
(k) Additional Conditions
(i) In the event the Subcontractor or their respective tier subcontractor does not comply with the Insurance Requirements outlined above, Contractor may at its option, provide such coverage to protect its interests and charge the Subcontractor for the cost of that insurance.
(ii) Contractor may, at its option, withhold payment from the Subcontractor until a valid insurance certificate is furnished, or if upon receipt of a cancellation notice on a policy, until withdrawal of the notice or reinstatement of the cancelled policy.
(iii) (iv)The failure of Contractor to enforce in a timely manner any of the insurance requirements shall not act as a waiver of any of these provisions in the performance of the agreement between the Subcontractor and Contractor
The required insurance shall be subject to the approval of Contractor, but any acceptance of insurance certificates by Contractor shall in no way limit or relieve Subcontractor of the duties and responsibilities by him in this Agreement. If higher limits or other forms of insurance are required in the Contract Documents, Subcontractor will comply with such requirements.
(v) Waivers of Subrogation. The Contractor and Subcontractor waive all rights against (i) each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other, and (ii) the Owner, the Architect, the Architect’s consultants, separate contractors, and any of their subcontractors, sub- subcontractors, agents and employees for damages caused by fire or other causes of loss to the extent covered by property insurance provided under the Prime Contract or other property insurance applicable to the work, except such rights as they may have to proceeds of such insurance held by the Owner as a fiduciary. The Subcontractor shall require of the Subcontractor’s Sub-subcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of the parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
(l) If the prime contract requires limits of insurance higher than the minimum limits set forth above, or broader coverage than set forth above, the requirements of the prime contract shall apply to the extent that they exceed the minimum requirements set forth above.
(m) Contractor and Subcontractor waive all rights against each other and against all other subcontractors and Owner for loss or damage to the extent covered by Builder’s Risk or any other property of equipment insurance applicable to the work, except such rights as they may have to the proceeds of such insurance. If the policies of insurance referred to in this section require an endorsement or consent of the insurance company to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed or obtain such consent.
(n) The requirement for carrying insurance hereunder is cumulative and shall not be in derogation of other provisions of this Subcontract.
SECTION 13. INDEMNIFICATION AND OTHER OBLIGATIONS OF SUBCONTRACTOR.
Subcontractor specifically obligates itself to Contractor in the following respects (and this agreement is made upon such express conditions) to wit:
With the exception that this provision shall in no event be construed to require indemnification by Subcontractor to a greater extent than permitted under the laws of the State of California, Subcontractor shall indemnify, defend and hold harmless Owner and Contractor, and all of their respective officers, agents, employees, directors, property manager affiliates, parents and subsidiaries, the Architect, the Architect’s Consultants and each of them (the “Indemnities”), from any and all claims, demands, causes of action, damages, costs, expenses, actual attorney’s fees, losses or liability, in law or in equity of every kind and nature whatsoever (“Claims”) arising out of or in connection with Subcontractor’s operations and/or performance under this Subcontract, including, but not limited to:
Personal injury, including, but not limited to, all claims for damages of any kind, bodily injury, emotional injury, sickness or disease, or death to persons, including, but not limited to, any employees or agents of Subcontractor, Owner, Contractor, or any other subcontractor and/or damage to property of anyone (including loss of use thereof), caused or alleged to be caused in whole or in part by any negligent act or omission of Subcontractor or anyone directly or indirectly employed by Subcontractor or anyone for whose acts Subcontractor may be liable regardless of whether such personal injury or damage is caused by an Indemnitee.
Penalties imposed on account of the violation of any law, order, citation, rule, regulation, standard, ordinance or statute, caused by the action or inaction of Subcontractor.
Infringement of any patent rights which may be brought against an Indemnitee arising out of Subcontractor’s work.
Claims for payment and liens for labor performed, services rendered and/or materials used or furnished to be used on the job, including incidental or consequential damages resulting to any Indemnitee from such claims or liens.
Subcontractor’s failure to fulfill any covenants set forth in the Subcontract relating to labor relations.
Failure of Subcontractor to comply with the insurance provisions of the Subcontract.
Any violation or infraction by Subcontractor of any law, order, citation, rule, regulation, standard, ordinance or statute in any way relating to the occupational health or safety of employees, including, but not limited to, safety regulations, the use of any Indemnities’ or other’s equipment, hoist, elevators, or scaffolds.
The indemnification provided herein shall extend to Claims occurring after this Subcontract is terminated and/or completed as well as while it is in force. Subcontractor, however, shall not be obligated under this Subcontract to indemnify an Indemnitee for Claims arising from the sole negligence and/or willful misconduct of an Indemnitee or their agents, employees or independent contractors who are directly responsible to an Indemnitee.
Subcontractor shall:
At Subcontractor’s own cost, expense and risk, defend all Claims that may be brought or instituted by third persons, including, but not limited to, governmental agencies or employees of Subcontractor, against any Indemnitee;
Pay and satisfy any judgment or decree that may be rendered against any Indemnitee or their agents or employees, or any of them, arising out of any such Claim; and/or
Reimburse any Indemnitee for any and all legal expense incurred by any of them in connection herewith or in enforcing the indemnity granted herein.
Hazardous Material Indemnity:
Subcontractor and its Sub-subcontractors shall use, handle, transport and dispose of all Hazardous Materials (as defined below) in compliance with all federal, state and local environmental, health or safety laws, including, but not limited to, all statutes, regulations, rules, ordinances, codes, and rules of common law. Subcontractor further agrees that Subcontractor and Sub-subcontractors shall not cause the discharge, release or disposal of any Hazardous Material on the job site. Subcontractor and its Sub-subcontractors shall, upon completion of performance of all duties under this Subcontract, remove all supplies, materials and waste containing any Hazardous Material from the job site. Subcontractor shall bear full financial responsibility, as between the parties of this Subcontract, for the compliance of Subcontractor and its Sub-subcontractors with the provisions of this paragraph. Should Subcontractor or its Sub-subcontractors discharge, release or dispose of any Hazardous Material on the site in violation of this paragraph, Subcontractor shall immediately so inform Contractor in writing. In the event Subcontractor or its Sub-subcontractors encounter on the site any pipeline, underground storage tank or other container, of any kind, that may contain a Hazardous Material, or encounter material reasonably believed to be a Hazardous Material, Subcontractor shall immediately stop work in the area affected and report the condition to Contractor in writing. Should Subcontractor or its Sub-subcontractors fail to take immediate steps to comply with the requirements of this paragraph upon notice from Contractor, Subcontractor shall be in default of this Subcontract. Subcontractor shall indemnify the indemnities’ as provided in this Indemnification Rider for any Claims (defined above) arising out of its breach of this provision.
“Hazardous Material” means any substance: (i) the presence of which requires investigation or remediation under federal, state or local statute, regulation, ordinance, rule, code, order, action, policy or common law, or (ii) defined as a “hazardous waste, “hazardous substance,” pollutant or contaminant under any federal, state or local statute, regulation, ordinance or amendments thereto including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. Sections 9601 et seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); or (iii) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and regulated by any governmental authority, agency, department. Commission, board, agency or instrumentality of the United States, the State or any political subdivision thereof; or (iv) the presence of which on the Property causes or threatens to cause a nuisance upon the Property or to adjacent properties or poses or threatens to pose a hazard to the health or safety of persons on or about the Property; or (v) which contains gasoline, diesel fuel or other petroleum hydrocarbons; or (vi) which contains polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde form insulation.
All work covered by this Agreement done at the site or in preparing or delivering materials or equipment, or any or all of them, to the site shall be at the risk of Subcontractor exclusively until the completed work is accepted by Contractor.
The indemnities set forth in this provision shall not be limited by the insurance requirements of the Subcontract.
Additional Obligations: Subcontractor is further obligated as follows
To pay for all materials, equipment, including repairs thereof and parts, fuel and labor, including sales taxes and other taxes, ordered for or used in the project by Subcontractor and shall suffer no claim of lien or statutory withholding notice to be filed or served with respect to the subcontract work and shall present, on demand, to Contractor satisfactory evidence of any such payment;
To assume towards Contractor all the obligations and responsibilities that Contractor assumes towards Owner as set forth in the General Contract, including all conditions, drawings, specifications and addenda thereto and other documents hereinabove referred to insofar as applicable, generally or specifically, to the materials to be furnished and the work to be performed under this Subcontract;
To obtain and pay for all permits, licenses and official inspections made necessary by its work and to comply with all laws, ordinances and regulations bearing on its work and the conduct thereof;
To be fully and exclusively responsible for, and to pay when due, any and all applicable contributions, allowances or other payments or deductions, however termed, required by union labor agreements or required by law now or hereafter in force; and
Subcontractor shall defend and indemnify Contractor against, and save it harmless from any and all loss, damage, costs, expenses and attorney’s fees suffered or incurred on account of any breach of the aforesaid obligations and covenants, and any other provision or covenant of this Subcontract. At any time before final settlement or adjudication of any loss, damage, liability, claim, demand, suit or cause of action for which Subcontractor in this Subcontract agrees to defend, indemnify and save harmless Contractor, Contractor may withhold from any payments due or to become due under this Subcontract the reasonable value thereof, as determined solely by Contractor. Contractor further reserves the right to withhold from any payments due Subcontractor hereunder any amount due Contractor from Subcontractor under or related to this Subcontract.
SECTION 14. USE OR OCCUPANCY BY CONTRACTOR. Whenever it may be useful or necessary to Contractor to do so, Contractor may occupy and use any portion of the work which has been either partially or fully completed by Subcontractor before final inspection and acceptance thereof by Owner, but such use or occupancy shall not relieve Subcontractor of its guarantee of said work and materials nor of its obligation to make good, at its own expense, any defect in materials and workmanship which may occur or develop prior to Contractor’s release from responsibility by Owner. Provided, however, Subcontractor shall not be responsible for the maintenance of such portion of the work as may be used or occupied by Contractor, not for any damage thereto that is due to or caused by the sole negligence of Contractor during such period of use. Subcontractor agrees further that if it shall cause any stains, blemishes, imperfections, marks or damage of any sort whatsoever, whether to its work or to the work of Contractor or to the work of another subcontractor, it will immediately remedy the damage so caused to the satisfaction of Contractor. Subcontractor further agrees when so required by Contractor to do any and all cutting and patching necessary in connection with Subcontractor’s portion of the work and agrees further that such cutting and patching shall match other work performed under the General Contract.
SECTION 15. DAMAGE TO OTHER WORK. The work provided for in this Subcontract constitutes only a part of the work being performed for Owner by Contractor and other subcontractors. Subcontractor, therefore, agrees to perform the work called for in this Subcontract in such a manner that it will not injure or damage any other work performed by Contractor or any other Subcontractor, and further agrees to pay Contractor for any damage that may be caused to such other work by Subcontractor or by its agents or employees. If the performance of any item of work by Subcontractor is related to or dependent upon any other item of work performed or materials furnished by others. Subcontractor warrants, by undertaking to perform his work, that such other items are satisfactory and acceptable, and waives all claims against Contractor for additional compensation or for damages resulting from any defects therein.
SECTION 16. INDEPENDENT CONTRACTOR. Subcontractor represents that it is, or prior to the start of work hereunder that it will become, an Independent Contractor and an employing unit subject, as an employer, to all applicable Unemployment Compensation statutes and Federal and State statutes including Workers’ Compensation statutes relating to payroll retention and contributions so as to relieve Contractor of any responsibility or liability for treating Subcontractor’s employees as employees of Contractor for the purpose of keeping records, making reports and payment of Unemployment Compensation taxes or contributions or payroll contributions and retentions, and payment of Workers’ Compensation Insurances. Subcontractor agrees to indemnify and hold Contractor harmless and reimburse it for any expense or liability incurred under said statutes in connection with employees of Subcontractor, including a sum equal to benefits paid to those who were Subcontractor’s employees, where such benefit payments are charged to Contractor under any Merit Plan or to its individual Reserve Account pursuant to any State Unemployment Compensation statute or other statute, regulation or requirement, including Workers’ Compensation statutes.
Subcontractor further agrees as regards (a) the production, purchase and sale, furnishing and delivering, pricing and use or consumption of materials, supplies and equipment, (b) the hire, tenure or conditions of employment of employees and their hours of work and rates of and the payment of their wages, and (c) the keeping of records, making of reports, and the payment, collection, and deduction of Federal, State and Municipal taxes and contributions, that Subcontractor will keep and have available all necessary records and make all payments, reports, collections and deductions, and otherwise do any and all things so as to fully comply with all Federal, State and Municipal laws, ordinances and regulations in regard to any and all said matters insofar as they affect or involve Subcontractor’s performance of this Subcontract, all so as to fully relieve Contractor from and protect it against any and all responsibility or liability therefor or in regard thereto.
SECTION 17. OWNER’S REPRESENTATIVE. The words “Owner’s Representative” as used herein refer to the person appointed by Owner to supervise the work in behalf of Owner.
SECTION 18. ASSIGNMENT AND SUBLETTING. Any assignment, subletting or delegation, by operation of law or otherwise, in whole or in part, by Subcontractor of this Subcontract, of the work to be performed or of any claims arising hereunder without the prior written consent of Contractor shall be void. Contractor shall not recognize or be bound by any assignment of any right to payment earned or to be earned by performance hereunder by Subcontractor unless and until Contractor shall receive written notice which reasonably proves the assignment and identifies the rights assigned. Any assignment hereunder shall be subject to, and Contractor reserves all rights and remedies possessed by or available to Contractor by law or under this Subcontract as against Subcontractor, its sureties and assigns, including, without limitation, rights of set-off, to retain moneys, to amend or modify this Subcontract, and to assert all other defenses and claims whether or not arising under this Subcontract. The making of any assignment by Subcontractor or any consent thereto by Contractor shall in no event relieve Subcontractor, or its sureties hereunder, of any of their obligations, duties, responsibilities or liabilities.
Any subletting hereunder shall be on the express condition that the sub-subcontract shall be subject to the terms and conditions of this Subcontract and Subcontractor shall incorporate all terms and conditions of this Subcontract in any such sub-subcontract.
SECTION 19. SAFETY.
Safety Administration. Safety is of the essence of this Subcontract. Subcontractor shall be solely and completely responsible for working conditions and the safety of all persons and property in areas where Subcontractor is performing the work. Subcontractor shall conduct weekly safety meetings for its employees and insure that Subcontractor’s Sub-subcontractors conduct safety meetings for their employees.
Safety Rules. Subcontractor is solely responsible for assuring that all of its work, materials, equipment and procedures shall be in accordance with all Federal, State, County, City or local safety requirements, laws, rules, and regulations. Subcontractor shall perform the work in accordance with all applicable laws, regulations, orders, standards and interpretations promulgated under OSHA as of the date of this Subcontract or such other similar acts as adopted by the State of California. Subcontractor shall defend, indemnify, and hold harmless Contractor and its agents, directors, officers, members and tenants from any and all loss, damages, expenses (including, but not limited to, attorney’s fees and expenses), liabilities, fines, penalties and awards, resulting from any litigation or any claim, arising from subcontractor’s violation of such requirements, laws, rules, and regulations, including those of OSHA, including any claims made by any Owner, member, tenant, licensee, agent or employee of Contractor or Subcontractor, its Subcontractors and vendors, by reason of any personal injury, death or property damage which results from Subcontractor’s violation of such requirements, or under claims for peculiar risk of harm.
Safety Equipment. Subcontractor shall provide each of Subcontractor’s employees and insure that each of Subcontractor’s Sub-subcontractors provide each of its employees with all protective equipment required by law, regulations, orders, or by nature of the work being undertaken. Protective equipment shall be utilized at all appropriate times. Subcontractor shall insure that its field employees and the field employees of Subcontractor’s Sub-subcontractors are suitably and safely attired, and that any employee not so attired is promptly removed from the job site.
Safety Devices. Subcontractor shall provide, erect and maintain all necessary and required warning signals, signs, lights, barricades and fences in the area where Subcontractor is performing the work.
Safety Precautions. Subcontractor shall erect and properly maintain at all times the necessary safeguards for the protection of workers and the public as required by the conditions and progress of the work. Subcontractor shall eliminate or abate safety hazards created by or which otherwise result from the performance of the work, whether created by Subcontractor or one of its own Sub-subcontractors or vendors.
Subcontractor’s Warranty. Subcontractor warrants that included in the Subcontract Price are all costs and expenses necessary to comply with the Safety provisions set forth herein. Failure to abide by these safety provisions will constitute a material breach of the Subcontract on the part of the Subcontractor and Contractor can, at its discretion, either terminate the Subcontract under the provisions set forth under this Subcontract or stop the work and require Subcontractor to correct any safety deficiency. The cost to correct such deficiency shall be to the subcontractor’s sole account.
The Subcontractor shall take reasonable safety precautions with respect to performance of this Subcontract, shall comply safety measures initiated by the Contractor and with applicable laws, ordinances, rules, regulations and orders of public authorities for the safety of persons or property in accordance with the requirements of the Prime Contract. The Subcontractor shall report to the Contractor within three days, or such shorter time as any law, rule and/or regulation might require, an injury to an employee or agent of the Subcontractor which occurred at the site.
If Hazardous Materials of a type of which an employer is required by law to notify its employees are being used on the site by the Subcontractor, the Subcontractor’s Sub-Subcontractors or anyone directly or indirectly employed by them, the Subcontractor shall, prior to harmful exposure of any employees on the site to such substance, give written notice of the chemical composition thereof to the Contractor in sufficient details and time to permit compliance with such laws by the Contractor, other Subcontractors and other employees on the site.
In keeping with Contractor’s intention to provide a safe working environment for all of its employees, Contractor has established a Substance Abuse Policy for its employees and Subcontractors working at its job sites. Any employee or Subcontractor’s employee found to possess, sell, or use drugs/alcohol or any controlled substance at the job site will be subject to immediate termination including for a first violation. It is the responsibility of all employees and Subcontractors to enforce this policy, including immediate termination of any individual found possessing, selling, or using drugs/alcohol while on the job site and reporting same to Contractor’s President. THERE WILL BE NO EXCEPTION TO THE ABOVE ESTABLISHED POLICY.
Subcontractor shall provide material safety data sheets and its written safety program to Contractor prior to performing any work on the Project. Subcontractor shall provide evidence that workers are trained in the use of the materials they will use for the Project.
SECTION 20. WARRANTY. Subcontractor guarantees and warrants that its work shall comply strictly with the provisions of this Subcontract; the Contract Documents, and all specifications and drawings referred to in this Subcontract or thereafter furnished by Contractor, and that the work shall be highest quality in every particular and free from defects in materials and workmanship and in any design or engineering furnished by or on behalf of Subcontractor. Subcontractor further guarantees Contractor that all materials, equipment and supplies furnished by or on behalf of Subcontractor for the work shall be new, merchantable, of the most suitable grade and fit for their intended purposes. Without limitations of any other rights or remedies of Contractor, if any defect in the work in violation of the foregoing guarantees arises within the period set forth below, Subcontractor shall, upon receipt of written notice of such defect, promptly furnish, at no cost to Contractor, labor, equipment, materials and reimbursement of fees for design and engineering necessary to correct such defect and cause the work to comply fully with the foregoing guarantees.
The start date of the warranty will commence on the date of substantial completion of the entire Project and specific acceptance of the work performed under this Subcontract. This warranty is in addition to the other remedies Contractor has under this Subcontract and California law.
Labor, equipment, materials and design and engineering (if any) furnished by or on behalf of Subcontractor pursuant to this Subcontract to correct defects, shall be guaranteed by Subcontractor for a period of twelve (12) months from the date of completion of the correction, or for the remainder of the guarantee period set forth elsewhere in this Subcontract or the Subcontract Documents, whichever is longer. If any of the Contract Documents require a warranty longer than the warranty period provided herein, then the longer warranty period shall automatically apply.
In the event Subcontractor shall have been notified in writing of any defects in the work in violation of Subcontractor’s foregoing guarantees and shall fail to adequately correct such defects within 14 calendar days of written notice from Contractor, Contractor shall have the right to correct or to have such defects corrected for the account of Subcontractor, and Subcontractor shall promptly pay Contractor the costs incurred in correcting such defects, including all attorneys’, architect, engineering, consulting, testing and other professional fees and costs.
Subcontractor warrants to Owner and Contractor that all materials and equipment furnished shall be new unless otherwise specified and that all work under this Agreement shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The warranty provided in this Section 20 all be in addition to and not in limitation of any other warranty or remedy required by law or by the Contract Documents.
SECTION 21. LABOR LAWS. Subcontractor agrees to be bound and comply with all applicable labor laws, regulations and standards issued or promulgated by a federal, state or other government authority having jurisdiction. Subcontractor further agrees to be bound by and comply with all applicable Fair Employment Practices and Equal Opportunity Provisions and Regulations of federal, state or other governmental authority having jurisdiction. Subcontractor acknowledges that it has read said laws, regulations, standards and provisions and is familiar with the terms thereof. Subcontractor agrees that any further subcontractor of any portion of the work covered hereby shall observe and be bound by said provisions to the same extent as herein required of Subcontractor.
SECTION 22. DRAWINGS, PLANS, SPECIFICATIONS. When drawings, plans, specifications, samples or detail work shall be required by the Subcontract, or shall otherwise be required by Contractor to be submitted by Subcontractor, whether on account of work required to be done hereunder or on account of changes in work, Subcontractor agrees to supply the same promptly to Contractor for approval by Owner. If any such drawings, plans, specifications, samples or detail work as submitted by Subcontractor, whether or not they shall be approved by Owner, deviate from or are inconsistent with the design drawings or the specifications of the job, and in the further event that any such deviations or inconsistencies shall cause Contractor to suffer any damage or incur any cost or expense because of delays or extra work or otherwise, Subcontractor agrees to reimburse Contractor therefor. If any such damage, cost or expense be imposed upon Contractor, Contractor may, at its option, withhold from Subcontractor any payments due or to become due to Subcontractor an amount sufficient fully to reimburse Contractor therefor. The provisions of this paragraph are cumulative of the remedies provided Contractor by other sections of this Subcontract.
SECTION 23. SETTING OF STAKES.
Contractor will set such stakes as Contractor determines to be necessary to establish the lines and grades for the completion of the work specified in Section 2. Subcontractor shall give Contractor not less than two working days’ written notice in advance of the commencement of the operations of Subcontractor which required such stakes. Such stakes shall be carefully preserved by Subcontractor. If such stakes are destroyed or damaged they will be replaced at Contractor’s earliest convenience. Subcontractor will be charged with the cost of such replacement if, in Contractor’s judgment, the stakes were carelessly or willfully destroyed or damaged by Subcontractor’s operations or were destroyed, damaged or removed by third parties during a delay be Subcontractor in the commencement of its operations.
SECTION 24. NOTICES. Any notice, where required by the terms of this Subcontract, shall be in writing and may be served by personal delivery or by mail or any standard form of telegraphic communication.
Personal delivery is complete when the notice is delivered to Subcontractor or its representative at the project or at the office address of Subcontractor appearing in the Subcontract. Subcontractor shall at all times during its work on the project have a representative authorized to receive written notices present on the project site during all normal working hours. In the absence of such a representative, personal delivery is complete when the notice is delivered to any of Subcontractor’s supervisors or workmen, or in their absence, left in a conspicuous place on the project site in the area of Subcontractor’s work.
SECTION 25. LABOR AGREEMENTS. Subcontractor, to the extent permissible under Federal and any applicable State laws, shall comply with, observe, and be bound by all the terms and provisions of any labor agreements executed by Contractor or on Contractor’s behalf, specifically including the terms and provisions of such agreements providing (a) for the assignment of work or the settlement of jurisdictional disputes through the Rules, Regulations and Procedures of the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry or any other agreed method for the determination of work assignments or the settlement of jurisdictional disputes, (b) for the adjustment of any other disputes or grievances, (c) for hiring and union-security and (d) for the making of payments into or under health and welfare or other fringe benefit funds or plans, to the extent that the terms and provisions of such agreements can legally be applied to the work to be done hereunder. Subcontractor agrees that if any portion of such work is further subcontract, such sub-subcontractor shall be bound by and observe the terms and provisions of such agreements to the same extend as is herein required of Subcontractor, and that any express provision imposing such obligations upon the sub- subcontractor will indemnify, defend and save Contractor harmless from and against any liability, claim, loss, damage or cause of action resulting in any way, directly or indirectly, from its failure to comply with the requirements of this paragraph.
The wages and working conditions of Subcontractor shall be of the same standard as those of Contractor and shall be subject to Contractor’s approval.
SECTION 26. ARBITRATION. If any dispute shall arise between Contractor and Subcontractor pertaining in any manner to the construction or interpretation of this Subcontract, or to the rights or obligations of the parties hereunder, or to the breach hereof, which the parties
are unable to settle by mutual agreement, Contractor shall have the exclusive option either to have the dispute determined by court or by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Contractor shall exercise said option by commencing a court action or by commencing an arbitration proceeding. If Subcontractor first commences a court action with respect to a dispute which Contractor desires to have determined by arbitration or an arbitration proceeding which Contractor desires to have determined by a court action, Contractor shall have the right to have said court action or arbitration proceeding stayed if Contractor promptly shall commence the arbitration proceeding or court action directed by Contractor. Judgment upon the award in any arbitration proceeding may be entered in any court having jurisdiction thereof. The prevailing party (as determined by the court or arbitrator(s) shall be entitled to reasonable attorneys’ fees from the other party in an amount to be fixed by the court or arbitrator(s). The arbitrator(s) in any arbitration proceeding shall have the right to allocate his or their fees between the parties or to charge all of such fees to one party, as the arbitrator(s) shall deem to be just. The law of the State of California shall govern all disputes referred to in this section. The provisions of Section 1283.05 of the Code of Civil Procedure of the State of California (pertaining to depositions and discovery) hereby are incorporated by reference herein and are made a part hereof.
SECTION 27. SEVERABILITY. To the best knowledge and belief of the parties, this Subcontract now contains no provision that is contrary to Federal or to State law or any ruling or regulation of a Federal or State agency. Should, however, any provision of this Subcontract at any time during its term be in conflict with any such law, ruling or regulation, then such provision shall continue in effect only to the extent permitted. If any provision of this Subcontract is thus held inoperative, the remaining provisions of this Subcontract shall nevertheless remain in full force and effect to the extent permitted by law.
SECTION 28. CLEAN UP. Subcontractor shall perform its work as herein required so that the premises shall at all times be neat, orderly and free from debris. The frequency and method of subcontractor clean-up shall be such that other trades are not negatively impacted and access to the work area is not restricted, unsafe conditions are not created and owner is satisfied with the appearance of the project. All debris, packing materials, scraps, dunnage, etc., associated with subcontractor’s work is to be placed in a debris box and/or garbage containers or removed offsite by subcontractor (including dump fees, if applicable) on a DAILY BASIS. Upon termination or completion of its work, Subcontractor agrees to remove all unused materials and all equipment, utilities and facilities furnished by Subcontractor, to clean up all refuse and debris, and to leave the premises clean, orderly and in good condition.
SECTION 29. NON-WAIVER. Waiver by Contractor of any breach hereof by Subcontractor shall not constitute a waiver of any subsequent breach of the same or any other provision hereof. If any provision of this Subcontract, or any part thereof, shall at any time be held to be invalid, in whole or in part, under any applicable Federal, State, Municipal or other law, ruling or regulation, then such provision shall remain in effect to the extent permitted, and the remaining provisions hereof shall remain in full force and effect.
SECTION 30. ENTIRE AGREEMENT. This Subcontract agreement contains all covenants, stipulations and provisions agreed upon by the parties hereto. No agent of representative of either party has authority to make, and the parties shall not be liable for, any statement, representation, promise or agreement not set forth herein. Words used in this Subcontract in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter genders; the singular number includes the plural, and the plural the singular.
SECTION 31. SECTION TITLES. Section Titles in the subcontract agreement are for convenience only and shall not be construed to modify, expand or limit the provisions of the section to which they refer.
CONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS’ STATE LICENSE BOARD. ANY QUESTIONS CONCERNING A CONTRACTOR MAY BE REFERRED TO THE REGISTRAR OF THE BOARD WHOSE ADDRESS IS:
CONTRACTORS’ STATE LICENSE BOARD P. O. BOX 26000
3132 BRADSHAW ROAD
SACRAMENTO, CA 95826
IN WITNESS WHEREOF, the parties hereto have executed this Subcontract by their proper
officers or duly authorized agents.
Contractor: Subcontractor:
Vino Design Build. NAME
2405 Laurel St Suite #104, Napa, CA 94558 ADDRESS
Tel: (707) 681-5942 Tel: (707) xxxxxxxx
License #1032164 Email:
License #
By: _____________________ By: _____________________
Name Typed:___________________ Name Typed:___________________
Title:___________________ Title:___________________
Date:__________________ Date:__________________