Subcontract -General (All States) - 9.11.15.doc€¦ · Web viewTherefore, with respect to the...

CONTRACT #:

SUBCONTRACT AGREEMENT PROJECT #:

DATE:

VENDOR PM VP

ALSTON CONSTRUCTION COMPANY INC., a California Corporation, hereafter called “Contractor” (“Contractor” shall also mean “Design-Builder” when used in the Prime Contract), with offices at One O'Hare Center, 6250 N. River Rd., Suite 4050, Atlanta, GA 30326, and [SUBCONTRACTOR], hereinafter called the “Subcontractor”, whose address is: , State Contractor’s License No. , phone: , fax: , agree as follows (this “Agreement” or “Subcontract”):

Subcontractor having thoroughly investigated and informed itself of the conditions, locality and site of the Work, and nature and difficulty of the Work, by thorough examination and comparison of all plans and specifications, and Project site conditions insofar as they relate in any way to the Work to be undertaken herein such that Subcontractor can perform all Work and requisite duties, obligations and responsibilities, including those reasonably inferable there from, under this Agreement for the cost specified below, subject to adjustments as permitted in this Agreement, agrees to complete the Work described below to the best of its ability and in a professional and workmanlike manner, in strict accordance with the requirements herein, including all documents incorporated herein and details illustrative thereof. Subcontractor enters into this Agreement on the basis of its own examination, investigation and evaluation of all such matters and not in reliance upon any opinions or representations of Contractor, Owner, or any of their respective officers, agents, servants, or employees.

1. Project Name:

Project Location:

Owner:

2. Scope of Work: Subcontractor agrees to perform the following work (“Work”): Provide all material, labor, equipment, applicable permits, hoisting and supervision required to , as additionally specified in Exhibit C - Scope of Work.

3. Subcontract Documents: The Subcontract Documents shall consist of the following:

(a) this Agreement;(b) Addenda, if any;(c) Change Orders issued in accordance with Section 13;(d) the Prime Contract between Owner and Contractor for the Project, including all contract documents included

thereto, as redacted by Contractor at its sole discretion (“Prime Contract”);(e) Submittal Log;(f) Closeout Log; (g) Exhibit A – Plans, a list of which is attached hereto;(h) Exhibit B – Specifications, a list of which is attached hereto;(i) Exhibit C – Scope of Work;(j) Exhibit D – Contractor’s Schedule (“Schedule”);(k) Exhibit E – Subcontractor Safety Requirements;(l) Exhibit F – Payment Application and Lien Waivers (Textura);(m) Exhibit G – Prime Contract Flow Down;(n) Exhibit H – Subcontractor Warranty Form; (o) Exhibit I – .

The Subcontract Documents are incorporated into this Agreement by reference.

In case of any inconsistency, conflict or ambiguity among the Subcontract Documents, the documents shall govern in the following order: (a) Change Orders and written amendments to this Agreement; (b) this Agreement, including Exhibits and

Revision: 05.17.18 1 of 18 Project_ document.doc

Addenda; (c) the Prime Contract (however the Prime Contract or a portion of it shall take precedence over this Agreement) including Exhibits and Addenda; (i) to the extent a provision in the Prime Contract states that such provision must be inserted in this Agreement (i.e. Subcontract), or such similar language and intent, or (ii) the Prime Contract states that the Prime Contract as a whole takes precedence over this Agreement; (d) Specifications; (e) Drawings; (f) approved submittals; and (g) other documents listed in this Agreement. Information identified in one of the Subcontract Documents and not identified in another shall not be considered a conflict or inconsistency.

4. Subcontract Price: Contractor shall pay to Subcontractor, as full compensation for the performance of all Work and the furnishing of material and appliances of every nature which Subcontractor is obligated to perform and furnish under this Agreement, the following lump sum amount:

dollars and no/100---------- $ (“Subcontract Price”)

.1 The Subcontract Price shall include all applicable Sales, Use, Franchise, Excise and other taxes, and license and permit fees, which may now or hereafter be levied or required.

.2 Any increase in the Subcontract Price to be paid to Subcontractor hereunder shall be limited to the extent specified in Section 13 “Changes” in this Agreement.

5. Owner – Contractor Agreement (Prime Contract): To the fullest extent allowed by law, it is the goal of Contractor and Subcontractor under this Agreement that Contractor will only be liable to Subcontractor to the extent Owner is liable to Contractor. Therefore, with respect to the Work to be performed and furnished by the Subcontractor, Subcontractor shall comply with and be bound to Contractor by any and all of the obligations, duties, terms, conditions, and responsibilities in the Prime Contract as if incorporated herein in full, and in addition to all other rights and remedies Contractor may have under this Agreement, the Prime Contract, and under law, Contractor shall have the same rights and remedies against Subcontractor as Owner has towards Contractor as set forth in the Prime Contract as if each such right, remedy, term and provision were set forth in full herein. Where in the Subcontract Documents reference is made to Contractor and the provision pertains to a subcontractor or subcontractor's trade, craft or type of work, then such provision shall be interpreted to apply to Subcontractor instead of Contractor. This Agreement, the provisions of the Prime Contract and the other Subcontract Documents are intended to supplement and complement each other and shall, where possible, be thus interpreted. The Prime Contract, along with the other Subcontract Documents, has been made available to Subcontractor for its review and evaluation prior to execution of this Agreement, although certain confidential business terms and conditions may be redacted. In that regard, by executing this Subcontract, Subcontractor affirmatively represents that the Prime Contract and other Contract Documents have been made available for examination by Subcontractor at all reasonable times at Contractor’s office, and that Subcontractor has carefully examined and read the Prime Contract and other Contract Documents and understands all of the obligations, duties, terms, conditions, and responsibilities in the Prime Contract and Contract Documents as applicable to Subcontractor. Subcontractor hereby waives any claims against Contractor or Owner that the Prime Contract or other Subcontract Documents were not made available to Subcontractor prior to execution of this Agreement. Notwithstanding any of the foregoing, if any provision of this Agreement irreconcilably conflicts with a provision of the Prime Contract and the other Subcontract Documents, the provision imposing the greater duty or obligation or more strict limitations on Subcontractor shall govern.

6. Time: Time is of the essence in the performance of the Subcontractor’s Work and with respect to all aspects of this Agreement. The Subcontractor shall commence Work promptly as directed by the Contractor and prosecute the same energetically and expeditiously, in full cooperation with the Contractor, other Subcontractors and in accordance with the requirements of the Subcontract Documents and Schedule as determined by the Contractor until fully completed and accepted by Contractor and Owner for the price specified herein. Subcontractor shall complete the Work in accordance with the Contractor’s Schedule, except as otherwise modified as permitted by the terms herein. If Contractor deems it necessary due to Subcontractor’s failure to timely perform Work in accordance with the Subcontract Documents and the Schedule, Subcontractor, at its own expense and on demand of Contractor, shall provide additional work forces, work overtime and additional shifts, and shall pay premium costs for material and for expediting the furnishing of materials and make other accommodations so as to meet the Contractor's Schedule. The Work under that Schedule shall be deemed to have commenced upon the earlier of a notice to proceed from Contractor or Subcontractor’s actual commencement of any portion of the Work. Subcontractor agrees to reimburse Contractor for any and all liquidated damages or other delay damages that may be assessed against Contractor by Owner, which are attributable to or caused in whole or in part by Subcontractor's failure to perform the Work as provided herein. In addition, Subcontractor agrees to pay to Contractor such other and additional damages as Contractor may sustain by reason of any delay or failure to perform the Work or any requirement under this Agreement by Subcontractor. Payment of such damages by Subcontractor shall not release Subcontractor from its obligation to otherwise fully perform this Agreement. Unless otherwise specified, the term day shall mean a calendar day.

7. Subcontractor’s Duties; Non-Assignability: Subcontractor shall at its sole cost and expense comply with all state, federal and local laws, ordinances, codes and regulations of all governmental authorities relating to the Work or persons involved in this Agreement, including but not limited to health, safety, employment, including compliance with prevailing wage laws, if applicable, taxes, building codes and environmental laws, employ labor under conditions satisfactory to the Contractor and remove


and replace any employees unsatisfactory to the Contractor; protect its Work, the work of others and the Project from damage caused by its activities; secure and protect all its materials until permanently installed; furnish and maintain all insurance policies hereinafter required; insure its own risk in or about the Project; remove and replace promptly all its defective, deficient or non-conforming Work or material at its sole cost and expense; coordinate its Work with other subcontractors and vendors; and immediately report to Contractor in writing any errors, inconsistencies, or omissions relating to its Work, any substrate or related work if Subcontractor’s Work shall be installed or performed on top of or in relation to another subcontractor’s work. By performing its Work on top of or in relation to another subcontractor’s work, Subcontractor represents that it has inspected the underlying or related work and that such work is sufficient to receive Subcontractor’s Work and such underlying or related work does not contain any patent defects or deficiencies. Subcontractor shall not assign or sublet this Agreement, or any portion hereof, nor any monies due or to become due Subcontractor hereunder, without previous written consent of the Contractor; and Subcontractor shall not deviate from said plans, specifications and details, except on written order of the Contractor. Subcontractor warrants and represents that Subcontractor, its sub-subcontractors and any other persons or entities of any tier retained by Subcontractor to perform any portion of the Work are licensed to perform the Work by all applicable public and governmental agencies and entities. Subcontractor shall prepare shop drawings and all submittals accurately and provide such shop drawings and submittals to Contractor in a timely manner in strict accordance with Contractor’s Schedule and Submittal Log. Contractor’s or Owner's review or approval of the Work shall not relieve Subcontractor of its obligations to perform the Work in accordance with the Subcontract Documents and in a good and workmanlike manner. Contractor’s or Owner’s review or approval of the Work shall in no way release, modify, reduce or affect Subcontractor’s responsibility (a) for performance of its Work in accordance with the Subcontract Documents and in a good and workmanlike manner, or (b) for deficiencies or defects in the Work; nor shall such review or approval constitute a waiver of Contractor's rights against Subcontractor under this Agreement.

8. Subcontractor as Independent; Indemnification: In consideration of the first $1,000 of the Subcontract Price and other good and valuable consideration, to the fullest extent permitted by law, the Subcontractor shall protect and fully indemnify, immediately defend and hold harmless the Owner, Contractor, and surety (and other entities identified in the Owner/Contractor agreement to be indemnified by the Contractor) and all of their respective employees, agents, consultants, parents, subsidiaries or affiliated companies, members, stockholders, officers, directors, insurers, successors and assigns (“Indemnified Parties”) from and against all claims, demands, suits, arbitrations, causes of action, liability, losses, damages, injuries (including death), penalties, fines, allegations, expenses, costs, attorneys’ fees, paralegal, consultants and expert fees, other legal expenses and dispute resolution costs, loss of use, liens, stop notices, or bond claims, of every kind and nature (“Claims”) arising out of, in connection with or incidental to Subcontractor's operations or Work under this Agreement , including without limitation any act or omission of Subcontractor or anyone directly or indirectly employed by Subcontractor or anyone for whose acts Subcontractor may be liable.

.1 The indemnity obligations herein and those contained in any other Subcontract Document shall survive the termination of this Agreement for any reason and shall survive both Subcontractor’s and Contractor’s completion of their Work on the Project. In all instances, this indemnity obligation shall survive irrespective of whether Subcontractor’s insurance coverage as required by this Agreement has been maintained, changed, cancelled, or otherwise terminated since the termination of this agreement or since Subcontractor’s or Contractor’s completion of their Work. Nothing in this provision or Agreement shall relieve the Subcontractor of its duty to defend the Indemnified Parties pending determination of the respective liabilities of the Subcontractor, its sub-subcontractors of any tier, material suppliers, vendors, anyone else for whom Subcontractor is responsible or who is performing any portion of the Work and the Indemnified Parties.

.2 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under this Section 8, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect.

.3 In the event the Indemnified Parties must take action to enforce their rights under the indemnification provisions of this Section 8, the Indemnified Parties shall be entitled to recover their reasonable attorneys' fees and costs and all other expenses incurred in pursuing and enforcing their rights under this indemnification provision.

.4 The indemnification obligation in this Section 8 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor under workers' compensation acts, disability benefit acts, employee benefit acts or other legislation or rule of law, whether legislative, judicial, and administrative or common law.

.5 The acceptance by Contractor of any certification of insurance to be provided by Subcontractor pursuant to this Agreement shall in no event be deemed a waiver of any of the provisions of these indemnity obligations. T he indemnifications set forth in this Section 8 shall not be limited by the insurance requirements set forth herein.

9. Insurance: Certificates of Insurance and Endorsements in compliance with this Section 9 will be furnished to Contractor prior to commencement of any Work on the Project. Subcontractor shall, at its sole cost and expense, procure and maintain the following insurance covering Subcontractor’s Work and obligations under this Agreement on all of its operations with companies


lawfully authorized to do business in the jurisdiction in which the Project is located acceptable to Contractor for the life of this Agreement, or for such time that Contractor may be subject or exposed to claims, lawsuits or liability under Federal or State law involving the Work, whichever is longer; however, in no event less than three (3) years from the date of Substantial Completion of the Project (“Required Insurance Period”):

.1 Workers’ Compensation covering Subcontractor and all employees and as required by law including Employers Liability with minimum limits of:

a. Bodily injury by accident: $1,000,000 each accident

b. Bodily injury by disease: $1,000,000 each employee

c. Bodily injury by disease: $1,000,000 policy limit

d. If leased employees are used, issuance of an Alternate Employer’s Endorsement naming Contractor.

.2 Commercial General Liability: Commercial General Liability Insurance shall be on ISO CG0001 12/07 or an equivalent form, and shall have the following limits and requirements: a minimum $1,000,000 per occurrence, or the greatest amount available under the policy (per occurrence or aggregate), whichever is greater, with a maximum deductible or Self Insured Retention of $25,000 or as approved by Contractor, $2,000,000 general aggregate, $2,000,000 products/completed operations aggregate including products/completed operations for the duration of the Required Insurance Period and,

a. Additional Insureds: Contractor, Owner, or other Indemnified Party, and all of their respective employees, agents, consultants, parents, subsidiaries or affiliated companies, members, stockholders, officers, directors, insurers, successors and assigns, and other entities as may be reasonably requested or required by the Prime Contract, shall be named as additional insureds under these policies, whether during the performance of the Work or any time thereafter, that may in any respect be applicable to matters, claims or suits arising out of or related to this Agreement. The insurance afforded to the Additional Insured’s shall be at least as broad as that afforded to the first named insured under Subcontractor’s policy(ies). Subcontractor and its sub-tier subcontractors shall furnish Contractor with an original certificate of insurance and original additional insured endorsement(s) for the coverage required hereunder before commencement of the Work;

(The ISO CG2010 11/85 form; CG2010 10/01 with CG2037 10/01 forms; or their equivalents meet this requirement. Subcontractor’s coverage and responsibility shall be for liability arising from “your work” or “your operations”. “Your ongoing operations” language alone is not acceptable.)

A Blanket Additional Insured Endorsement providing coverage to Contractor, Owner, and all other additional insureds identified in this Agreement that meets the coverage requirements listed herein is acceptable; however, any additional insured endorsements must include products/completed operations coverage for the Additional Insureds, and shall be provided to the Additional Insureds for no less than three (3) years after completion of the Project.

b. If the Work involves exposure to explosion, collapse, or underground hazards, any exclusion relative to explosion, collapse or underground hazards must be removed.

c. If the Work involves any EIFS installation, any exclusion relative to EIFS must be removed.

d. Claims Made and/or Modified Occurrence forms are not acceptable.

e. Per Project Aggregate (ISO CG2503).

f. It is the intent of Subcontractor and Contractor that this Subcontract Agreement is an “insured contract” for purposes of Subcontractor’s additional insured requirements herein.

.3 Automobile Liability: Shall be provided by Subcontractor with not less than a $1,000,000 combined single limit each accident covering, at minimum, all owned, scheduled, hired and non-owned automobiles, and name all parties identified as Additional Insureds in Section 9.2a. above as additional insureds. If Subcontractor or its sub-subcontractors of any tier are required to haul hazardous materials in performance of the Work, Subcontractor and/or its sub-subcontractors must carry Automobile Liability insurance with limits not less than $1,000,000 covering such transportation and hauling of hazardous materials and accompanied by Motor Carrier Endorsement MCS 90 and Pollution Liability-Broadened Coverage for Covered Autos CA9948 or its equivalent.

.4 Professional Liability: Design and Design/Build subcontractors, including subcontractors providing professional design or engineering services, whether such design services are performed by or through Subcontractor, are also required to procure and maintain professional liability insurance coverage, including contractual liability insurance, in accordance


with the Design-Build Rider (Addendum) attached hereto, all terms and conditions of which are incorporated herein by reference as if reproduced herein in full. Unless greater limits are required by the Design-Build Rider (Addendum), professional liability insurance coverage shall have a minimum limit of $2,000,000 per claim and a maximum deductible of $25,000, or as otherwise approved by Contractor in writing.

.5 Pollution Liability: If the Work required by Subcontractor or its sub-subcontractors of any tier involves, in whole or in part, remediation, abatement, transportation, or disposal of hazardous materials/substances or contaminants, as defined by applicable law, statutes, codes, regulations or ordinances (“Hazardous Materials”), demolition or renovation that may involve materials containing Hazardous Materials, or if the Subcontractor’s primary business is providing demolition services, or if Subcontractor is performing any grading, earthwork, subsurface or related work, Subcontractor shall maintain Contractor’s Pollution Liability insurance of not less than $2,000,000 per occurrence, and name all parties identified as Additional Insureds in Section 9.2a. above as additional insureds. This policy shall include coverage for disposal at non-owned disposal sites.

.6 Excess or Umbrella: In addition to the above-stated insurance requirements, if the compensation under this Agreement exceeds $500,000 including any change orders, Subcontractor agrees to procure and maintain excess or umbrella insurance on a follow form basis over General Liability, Automobile, and Employers Liability, with a minimum limit of $1,000,000. If the compensation under this Agreement exceeds $1,000,000 including any change orders, Subcontractor agrees to procure and maintain excess or umbrella insurance on a follow form basis over General Liability, Automobile, and Employers Liability, with a minimum limit of $5,000,000. Notwithstanding the foregoing, if the Prime Contract specifies subcontractor limits in excess of the foregoing in relation to the Work, Subcontractor shall provide excess or umbrella insurance for such limits identified in the Prime Contract, and otherwise in compliance with this Section 9.6.

.7 Installation Floater, Equipment Floater, and Property Policies: In addition to the above-stated insurance requirements, Subcontractor shall insure at full replacement value all property, machinery and equipment required by the Work at all times and/or locations prior to installation into the Project. Subcontractor shall maintain at its sole cost and expense insurance to protect its own equipment, tools and materials against risk of loss with sufficient limits to cover the value of all of the equipment, tools and materials Subcontractor may use in performance of the Work. Subcontractor is solely responsible for any deductibles, self insured retentions, or uninsured losses for any reason arising out of Subcontractor’s obligations of this Section 9.

.8 Primary and Non-Contributory: All insurance provided or maintained by Subcontractor shall be endorsed to be primary insurance with respect to any other insurance or self insurance programs afforded to, or maintained by, Contractor or Owner or other Additional Insured or Indemnified Party. The designation of any insurance required to be provided by Subcontractor and their sub-subcontractors as an “umbrella” or “excess” policy shall not be controlling as to priority of coverage, and Subcontractor agrees that the total limits required by this Agreement shall be primary and non-contributory to Contractor’s or Owner’s insurance, if any. If Subcontractor maintains such insurance in limits or combination of limits greater than that required herein, Contractor and Owner shall, as an Additional Insured, be entitled to the full limits of such policies. Subcontractor has effected coverage in this manner and procured this from their insurer(s) and has had any limitations to the contrary removed or waived from their policy(ies) as respects this Project.

Waiver of Subrogation: Subcontractor and its insurer shall waive their rights against all parties identified as Additional Insureds in Section 9.2a. and other Indemnities above for recovery of damages to the extent these damages are covered by the insurance policies (including but not limited to Workers Compensation, General Liability, Automobile, Umbrella, property, pollution and professional policies) to be provided and maintained by Subcontractor pursuant to this Agreement. Subcontractor shall obtain written waivers of subrogation and those shall be effective even if such individual or entity would otherwise have a duty of indemnification, contractual or otherwise, and did not pay the insurance premium directly or indirectly, and whether or not such person has an insurable interest in the property damaged.

.9 If Subcontractor’s Work requires it to perform operations within 50 feet of property, an easement or right of way owned by a railroad, Subcontractor shall ensure that its General Liability and other policies as applicable have been endorsed to remove any exclusion for such Work. Subcontractor shall provide to Contractor proof of coverage endorsement prior to commencement of any such Work, and shall provide such endorsement at no additional cost to Contractor. Alternatively, Contractor may require Subcontractor to purchase a Railroad Protective Policy, which cost shall be subject to a change order as permitted under this Agreement only if such Railroad Protective Policy is required after execution of this Agreement. Subcontractor also agrees to be bound by the terms of any right of entry, license agreement or other agreement required by a railroad as a condition of performing the Work.

.10 All carriers providing coverage under this Agreement must be approved by the regulatory agency in the state or jurisdiction where the Project is located and/or where the Work is being performed, and must have at least an A.M. Best rating “A-” and a Financial Size Category of “VIII” or better. Subcontractor waives any and all rights of subrogation against Contractor and Owner.


.11 If the Subcontractor or its sub-subcontractors use any owned, leased, or chartered manned aircraft (including helicopters) in the performance of or in part of its Work, Subcontractor and it sub-subcontractors shall maintain aircraft liability insurance of not less than $10,000,000 per occurrence including passenger liability. Any aircraft, equipment or property used in connection with this Agreement shall be specifically scheduled on the aircraft liability insurance policy. The Indemnities shall be named as additional insureds on a primary/non-contributory basis, and include a waiver of subrogation in favor of Indemnities. In addition, Subcontractor or its sub-subcontractors shall be responsible for hull and physical damage covering the replacement cost value of the aircraft. If Subcontractor intends to use any commercially owned, leased, or hired unmanned aircraft (e.g. drones) for project photograph/videography, surveying and other similar purposes, but in no event any use involving payload or lifting of any equipment, product or cargo, the following minimum insurance requirements shall apply to such unmanned aircraft for aerial photography purposes:

(a) Aviation Liability Insurance: $2,000,000 per occurrence insuring for all risks of ground & flight and providing worldwide coverage. Such coverage shall include premises liability and personal injury, including libel, and slander. Any equipment or property used in connection with this agreement shall be specifically scheduled on the aviation insurance liability policy. Contractor and Owner shall be named as an additional insured on a primary/non-contributory basis, and include a waiver of subrogation, in favor of Contractor and Owner.

(b) Hull and Physical Damage coverage for all drone property and equipment used in connection with this Agreement providing coverage for the replacement cost value.

.12 Builder’s Risk: Except as modified by the Prime Contract, in the event a Builder’s Risk policy is in effect for this Project, and Subcontractor submits a claim for loss under the policy, Subcontractor shall be responsible for its proportionate share of the deductible applicable to a particular loss. Subcontractor’s share of the deductible for each claim under this policy shall be computed on the following basis: the percentage of Subcontractor’s claimed loss in a particular claim, as substantiated by documentation acceptable to the Contractor, in relation to the total value of the loss under the respective builder’s risk claim (“Percentage”). The Percentage shall then be applied to the applicable deductible and charged to Subcontractor. Subcontractor’s share of the deductible shall be immediately payable to Contractor upon demand and may be withheld by Contractor from any amounts due, or that may be due thereafter, to Subcontractor under any agreement between Contractor and Subcontractor.

.13 Policies shall have mandatory 30 day cancellation or Non-Renewal notice, except 10 day for non-payment, and shall be endorsed to provide such prior written notice of cancellation to Owner and Contractor.

.14 If Contractor requires additional coverage, policies or limits other than those specified herein or in the Prime Contract, upon Contractor’s request Subcontractor shall procure such insurance coverage and limits at Contractor’s cost.

.15 Subcontractor shall cause each sub-subcontractor of any tier retained by Subcontractor to perform any portion of the Work to purchase, obtain and maintain the herein required insurance and Waivers of Subrogation for the duration of the Work, prior to commencing any portion of the Work. Any such sub-subcontractor of any tier shall name all parties identified as Additional Insureds in Section 9.2a above as additional insureds on their respective policies. Prior to commencement of any portion of the Work by a sub-subcontractor of any tier, Subcontractor shall provide Contractor with copies of appropriate certificates of insurance and endorsements evidencing the required insurance for each sub-subcontractor. Subcontractor shall also obtain from each such sub-subcontractor a written indemnification in form and substance equivalent to the indemnity set forth herein, except that such indemnity shall be from such sub-subcontractor for the benefit of Owner and Contractor and any other Indemnified Parties.

.16 No policy maintained by Subcontractor pursuant to these requirements shall contain any deductible or self-insured retention as to any additional insured. In any event, Subcontractor is solely responsible for any deductible or self-insured retention associated with any policy maintained by Subcontractor as set forth herein, including any deductibles or self-insured retentions that may apply to Contractor or Owner by nature of their being named as additional insureds.

.17 Subcontractor’s policies shall not contain any exclusionary language or limitations that are applicable to any additional insured that are not applicable to the named insured.

.18 If Subcontractor fails to procure or maintain any required insurance, Contractor shall have the right, but not the obligation, to secure such insurance in the name of and for the account of Subcontractor. In this event, Contractor shall have the right to back-charge Subcontractor for the cost of procuring such insurance out of any monies otherwise due Subcontractor, including any retention. Subcontractor shall furnish copies of all insurance policies and declarations sheets to Contractor at Contractor’s request.

.19 Contractor’s failure to request or Subcontractor’s failure to provide or be in compliance with the insurance provisions herein shall not in any way limit, alter or release Subcontractor from its duties, liabilities and responsibilities nor be construed as a waiver of any of Subcontractor’s obligations contained in this Agreement. Further, Contractor’s failure to object to any non-conforming documentation shall not operate as an estoppel or waiver of such requirements.


.20 To the fullest extent permitted by law, if Subcontractor is out of business or otherwise unavailable at the time a Claim is presented to Contractor involving this Agreement, Subcontractor hereby assigns to Contractor all of its right, title and interest (but not any liabilities or obligations) under any applicable policies of insurance. This provision shall not apply to those policies where there is an express prohibition against assignment.

10. Payments to Subcontractor; Liens: Payment Applications for monthly progress payments, in the form attached hereto as Exhibit F, including all supporting documentation, such as certified payrolls if required, are due from Subcontractor no later than the 25th day of each month. The value of the Work completed is to be determined by reference to the Subcontract Price herein, but shall not exceed the Owner’s allowance therefor for which payment has been received by Contractor. The estimate of the Owner or the estimate of Contractor as to the amount of Work done by Subcontractor if Owner makes no separate estimate of such Work, shall be binding upon Subcontractor. Contractor shall pay or cause to be paid to Subcontractor, upon timely receipt of Payment Applications, progress payments of % of the approved value of the Work which has been completed. The remaining % shall be paid by Contractor after the entire work required by the Prime Contract has been fully completed in conformity with the Subcontract Documents and has been delivered and accepted by Owner and Contractor, and after Contractor has received payment from Owner. Any Payment Applications by Subcontractor and payments by Contractor under this Agreement shall be subject to adjustment and final audit. Subcontractor shall immediately reimburse Contractor in the event of any overpayment. Subcontractor shall not be entitled to payment if or to the extent Owner withholds payment from Contractor because Owner claims that the Work is defective or does not conform to the Subcontract Documents or because of claims asserted by any persons against Contractor related to the Work.

To the fullest extent allowed by law, Subcontractor shall not be entitled to receive payment, including progress payments or final payment, until Owner has paid Contractor for the Work and payment by Owner to Contractor for the Work is an absolute and express condition precedent to Subcontractor’s right to receive payment from the Contractor (or its surety). Subcontractor expressly assumes the risk of non-payment by Owner. To the extent that the previous conditional payment provision is prohibited under the applicable law, then in the event Owner delays in making payment to Contractor for the Work , Contractor shall have a reasonable time to make payment to Subcontractor. The term “reasonable time” shall be construed broadly to mean the maximum amount of time allowed under the applicable law. Subcontractor agrees that it will not, under any circumstance, claim against the Contractor or its surety for payment of amounts not due to Subcontractor under this Agreement.

Textura Construction Payment Management System (“Textura®−CPM”) - Unless otherwise directed or authorized by Contractor in writing, all Payment Applications and all supporting documents required herein (including but not limited to lien waivers, sworn statements, and all other items required for payment by the Contract Documents) for Subcontractor and its sub-subcontractors and suppliers, shall be in electronic format and shall be submitted to Contractor using Textura®−CPM. Fees to Subcontractors are calculated as 0.22% (22 basis points) of contract value, with a maximum fee of $3,750. If Subcontractor’s sub-subcontractors and suppliers are paid through Textura, fees to Subcontractors’ sub-subcontractors and suppliers are a fixed fee of $100 per sub-subcontractor or supplier contract. Subcontractor has evaluated and understands Textura®−CPM in relation to the Work and Subcontractor shall be solely responsible for, and has included in the Subcontract Price, all fees and costs Subcontractor and its sub-subcontractors and suppliers will incur as a result of complying with the payment requirements of the Subcontract Documents and Textura®−CPM for all payments that may become due under this Agreement. Subcontractor shall include a similar provision in all of its agreements with sub-subcontractors and suppliers in performance of the Work.Subcontractor acknowledges that the requirements herein are a material inducement for Contractor retaining Subcontractor to perform the Work and any failure by Subcontractor to strictly comply with the requirements of this paragraph shall be considered a default under the Subcontract Documents and Subcontractor shall not be entitled to payments until such time as it fully complies with these terms and conditions.Closeout: Subcontractor shall provide all closeout documents required by the Subcontract Documents, including but not limited to the following conditions precedent identified in this paragraph, within 10 days of request by Contractor. In addition to any other requirements of this Agreement and of the Subcontract Documents, final payment shall not become due to Subcontractor unless and until the following conditions precedent to final payment have been completely satisfied by Subcontractor: (a) approval and acceptance of Subcontractor's Work, including all punch list repairs, by the Owner, Architect, and Contractor; (b) delivery to Contractor, and Owner’s acceptance of all manuals, records, drawings, as-built drawings, guarantees and warranties for material and equipment furnished by Subcontractor, or any other documents required under the terms of the Subcontract Documents; (c) delivery to Contractor of satisfactory evidence by Subcontractor (including but not limited to an affidavit if requested by Contractor) that all labor and materials employed or used by Subcontractor in connection with the performance of its Work under the Subcontract have been paid for in full; (d) delivery to Contractor of affidavits and final waivers of lien by Subcontractor on Contractor's supplied forms and/or as otherwise required by the Subcontract Documents, together with, if expressly required by Contractor, similar affidavits and waivers from all of Subcontractor's vendors and sub-subcontractors; (e) delivery of the executed


Subcontractor Warranty Form executed by Subcontractor in accordance with Section 32 of this Agreement; and (f) delivery of any other items required by the Subcontract Documents. Acceptance of final payment by Subcontractor shall constitute a waiver of any and all claims by Subcontractor against Contractor, the Owner, or Architect.

Subcontractor shall furnish to Contractor lien releases from sub-subcontractors of any tier, material suppliers, or any other party furnishing items, labor, work, or services under or related to this Agreement in a form acceptable to Contractor and Owner and as required by law with the Payment Application and shall provide all other documentation required by the Prime Contract, and it is agreed that no payment hereunder shall be made to Subcontractor until and unless such releases and documentation are furnished. Retention billings must be accompanied by all unconditional releases upon final payment for suppliers, and conditional releases upon final payment from Subcontractor, its sub-subcontractors of any tier, and any other party furnishing items, Work, or services under or related to this Agreement. Contractor, in its sole discretion, reserves the right to pay Subcontractor, sub-subcontractors of any tier, material suppliers, laborers, any other party furnishing items, Work or services under or related to this Agreement, or any other party having a lien right or other claim under this Agreement or related to the Work by joint check or directly, at Contractor’s discretion. All payments to Subcontractor are subject to further conditions shown in this Agreement.

At any time after execution of this Agreement and before completion of Subcontractor’s Work, Subcontractor shall provide to Contractor, within 48 hours of Contractor’s request, documentation and financial statements satisfactory to Contractor of Subcontractor’s ability to perform the Work, in whole or in part. Contractor may request in writing that Subcontractor provide reasonable evidence that Subcontractor has made financial arrangements and has the financial capability to fulfill the Subcontractor’s obligations under this Agreement. Subcontractor shall furnish such evidence as a condition precedent to Contractor’s obligation to make payments to Subcontractor.

Within five (5) days after written demand from Contractor, Subcontractor shall cause the effect of any suit, bond claim, stop notice or lien for or on account of any work, labor, services, materials, supplies, equipment or other items performed or furnished for or in connection with the Work or under any change order or supplemental agreement for extra or additional work in connection with the Project, in relation to any improvements on the Project premises, or any monies due or to become due to Contractor from Owner, to be removed, discharged or satisfied from or in relation to the Project at its own expense, via bond or other means. If Subcontractor fails to do so, Contractor may use whatever means it deems appropriate to cause the effect of any such suit, bond claim, stop notice or lien to be removed from the Project. Any and all resulting cost and expense, including Contractor's reasonable attorneys' fees, shall be immediately due and payable to Contractor by Subcontractor.

Subcontractor agrees and covenants that all sums received from Contractor under this Agreement shall be used solely for the benefit of the persons or firms providing the Work and having the right to assert liens or claims against the land or improvements involved in the Work, or against any bond or security posted by Contractor, or in any way related to the Project. Accordingly, all sums paid to Subcontractor under this Agreement 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 for any other purposes, until all obligations arising hereunder have been fully discharged, all claims fully paid, and all final lien waivers obtained and delivered to Contractor. Subcontractor agrees to furnish Contractor such partial or final releases of claims or waivers of lien as Contractor may from time to time request. Contractor shall have no obligation to pay or see to the payment of any Payee, but it shall have the right to contact any such Payee to determine if they have been paid and Subcontractor shall provide reasonable assistance in obtaining that information.

11. Royalties, Patents and Copyrights: Subcontractor shall provide a statement identifying all patented or copyrighted materials, methods or systems incorporated in the Work that are likely to require the payment of royalties or license fees. The Subcontractor shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems incorporated in the Work. Subcontractor shall defend, indemnify and hold the Indemnified Parties harmless from all suits, actions or claims for any alleged violation or infringement of any patent rights, trademarks, or copyrights arising out of the Work, including attorneys' fees that the Indemnified Parties may incur in defending or adjusting any such suit, action or claim.

12. Contractor’s Right to Offset: Contractor reserves the right to retain out of any monies due or to become due to Subcontractor from this or any other contract between Contractor and Subcontractor, an amount sufficient to indemnify, protect and hold harmless the Contractor or Owner against loss and damages by reason of liens or any other claim or allegation, including the reasonable likelihood of a claim or allegations, in whole or in part arising out of or related to Subcontractor’s Work or failure to properly carry out the Work, including reasonable costs of litigation, attorneys’ fees, and liquidated damages pursuant to Section 6, if Contractor or Owner might be held directly or indirectly liable for any part of such lien, claim or allegation until such liability or alleged liability for loss and damages shall cease to exist. As used in this Section 12, claims and allegations arising out of or related to Subcontractor’s Work subject to this right to offset shall include, but not be limited to, Contractor’s reasonable belief and evidence that the Work is not in conformance with the Subcontract Documents, nonconforming Work or a portion thereof not immediately remedied, failure to comply with the Schedule(s) as adjusted in conformance with the terms herein, reasonable evidence that the Work cannot be completed for the Subcontract Price, reasonable evidence that Contractor may incur damages assessed by Owner arising in whole or in part due to Subcontractor’s breach of any term of this Agreement, reasonable evidence


that Subcontractor has failed to properly pay for labor, materials, equipment or supplies furnished in connection with this Agreement, Subcontractor’s failure to timely perform any task, duty, obligation, request or requirement under this Agreement, Subcontractor’s declaration of bankruptcy; or Contractor’s reasonable belief that Subcontractor cannot complete the Work and all other obligations under this Agreement, or any actual breach by Subcontractor of any term or condition of this Agreement or the Subcontract Documents. When the above reasons for disapproving or nullifying an application for payment are removed, payment will be made for amounts previously withheld. Nothing in this Section 12 shall be construed to limit or modify any other rights Contractor may have in this Agreement. The terms of this provision shall survive the completion of the Work under this Agreement or any termination of this Agreement.

13. Changes to the Scope of Work and Claims: Contractor may, at any time after the execution of this Agreement, without invalidating this Agreement or any bonds, if any, or security furnished hereunder, and without notice to the sureties, add to, reduce or change Subcontractor’s Scope of Work in whole or in part for any reason. All such changes shall be authorized by written Change Order(s) issued by Contractor. Any and all requests by Subcontractor for changes to the Subcontract Price or Schedule, as set forth herein, shall only be made pursuant to a written Change Order issued by Contractor. Reductions in scope from Contractor shall be given in writing to Subcontractor by Change Order. Subcontractor is not entitled to compensation or damage for any loss or additional expenses, including loss of profit or overhead relating to reduced or omitted Work or scope. To the fullest extent allowed by law, if Subcontractor believes it is entitled to Changes in the Work or extra work arising from any source, including but not limited to, directives or actions by Owner or its design professionals or consultants, Subcontractor’s right to receive a change order shall be subject to Owner’s approval and acceptance. Subcontractor acknowledges that Contractor’s superintendent or other field personnel shall not be an authorized agent of Contractor to approve Subcontractor’s change requests. Accordingly, no course of conduct or dealings between the parties, nor express or implied acceptance of alterations or additions to the Work, and no claim that the Owner or Contractor has been unjustly enriched by any alteration or addition to the Work, whether or not there is, in fact, any unjust enrichment to the Work, shall be the basis of any claim for an increase in any amounts due under the Subcontract Documents or for a change in any time period provided for in the Subcontract Documents. In that regard, Subcontractor’s claims for additional compensation or an extension of time for performance shall be limited to causes identified, and the conditions specified, in this Section 13 unless otherwise further limited by the Prime Contract, in which case the provisions of the Prime Contract shall take precedence.

.1 All claims for additional compensation or an extension of time for performance, for any reason specified in this Section 13 or the Prime Contract, must be given to Contractor by Subcontractor in writing within five (5) days after Subcontractor recognizes the condition or event giving rise to the claim or within such time as Contractor is required to give Owner such notice, whichever is earlier, otherwise, such claim shall be deemed waived and Subcontractor shall not be entitled to additional compensation or time. Except in an emergency, written notice shall be given before proceeding with extra or additional Work. If Contractor refuses to grant the requested additional compensation or time or Contractor and Subcontractor disagree on the value of the work or extension of time included in a written Change Order issued by Contractor, Subcontractor shall perform the work and shall submit a complete and specific claim for additional compensation or an extension of time for performance, including supporting documentation (including but not limited to labor hours and rates including burden, material units and pricing, equipment units and pricing, overhead and profit, all directly attributable to the claimed extra or changed work), to Contractor within fourteen (14) days after such work is performed. Subcontractor's failure to give Contractor timely written notice of a claim for additional compensation or an extension of time for performance prior to undertaking such work, or Subcontractor's failure to timely submit a complete and specific claim for additional compensation or an extension of time for performance, as required herein, shall be deemed a waiver and abandonment of any such claim. In that regard, Subcontractor waives all claims for additional compensation and an extension of time if Subcontractor fails to strictly comply with any term of this Section 13, and any costs incurred by Subcontractor shall be at Subcontractor’s sole risk and cost.

.2 Subcontractor, in agreeing to complete the Work within the time set forth in this Agreement, has taken into consideration and made allowances for all possible hindrances and delays including, but not limited to, weather delays incident to the Work. To the extent provided for in the Prime Contract, the Schedule shall be modified by Change Order as appropriate and Subcontractor shall only be entitled to an extension of time to complete the Work and shall not be entitled to damages for delay, inefficiency or impact. Such causes shall be limited to permissible or excused delays for which Contractor is entitled to a delay in the Prime Contract. Subcontractor shall take full responsibility to verify locations and elevations of all existing facilities and utilities including existing laterals, conduits, irrigation lines, and water lines. These utilities shall be located prior to proceeding with construction. Further, Subcontractor shall make field verification of all existing conditions, including potholes in streets, footing locations of traffic signal poles, and preparations to address all issues prior to starting any Work within the Project. This includes relocation and alteration of existing signs, K-rail, and grade that was prepared by others during the construction of the adjacent improvements. Any variations from the Subcontract Documents shall immediately be reported to Contractor prior to continuation of construction. No time extensions will be considered for delays caused by the lack of adherence to this requirement. Causes beyond the control of Subcontractor do not include acts or omissions on the part of its sub-subcontractors of any tier, material suppliers, any other party furnishing items, Work, or services under or related to this Agreement or others for whom the Subcontractor is responsible, or for theft of Subcontractor’s material or


equipment. In the event of any such delay, but before being entitled to any time extension, Subcontractor shall first work on weekend days and during “overtime.”

.3 Notwithstanding anything in Section 13.2 to the contrary, if Subcontractor is entitled to additional compensation or an extension of time under the Subcontract for the reasons set forth in this Section 13, Subcontractor’s right to receive payment from Contractor or right to an extension of time shall be limited to additional compensation and extension of time received by Contractor from Owner relating to Subcontractor’s claim for additional compensation or extension of time irrespective of the cause of such delay or increased cost to Subcontractor. In this regard, Subcontractor shall cooperate with Contractor in pursuing such additional compensation or extension of time and shall be responsible for and fund any and all expenses involving legal counsel and/or technical experts.

.4 In the event delays to the Project are encountered for any reason, Subcontractor shall undertake reasonable steps to mitigate the effect of such delays.

.5 No claim, dispute or controversy, including any claim for additional compensation or an extension of time for performance, shall interfere with the progress or performance of the Work. Pending the resolution of a claim, dispute or controversy, Subcontractor shall proceed with the Work as directed by Contractor, diligently prosecute the Work to completion, and then submit any dispute for resolution in accordance with the dispute resolution provisions of this Agreement. Failure to so proceed with the Work shall be deemed a material breach and a default under Section 16 of this Agreement.

.6 In no event shall Contractor be liable to Subcontractor or its Payees for any adjustments to the Subcontract Price, Schedule of the Work, damages, costs, losses or expenses, including but not limited to attorney’s fees, resulting from acts or omissions (whether or not negligent), failure to perform, delays in performance, or defaults of any party, including other subcontractors or their sub-subcontractors, suppliers, or vendors at any tier other than the Contractor or the Owner. Subcontractor agrees to file any such claim directly against the other party without making Owner or Contractor a party to such claim or action. Subcontractor acknowledges, understands and agrees that Contractor is not a guarantor of the performance of any other such party.

Any and all changes to the Subcontract Price or Schedule shall only be made pursuant to a written Change Order issued by Contractor. Subcontractor’s claims for additional compensation or an extension of time shall be limited to causes identified in this Section 13 unless otherwise further limited by the Prime Contract, in which case the provisions of the Prime Contract shall take precedence. Subcontractor waives all claims for additional compensation and an extension of time if Subcontractor fails to strictly comply with any term of this Section 13, and any costs incurred by Subcontractor shall be at Subcontractor’s sole risk and cost.

14. Suspension by Owner: Should Owner suspend the Work or any part of the Work and such suspension is not due to any act or omission of Contractor, Contractor shall notify Subcontractor in writing and upon receiving notification, Subcontractor shall immediately suspend the Work. In the event of Owner suspension, Contractor's liability to Subcontractor shall be limited to the extent of Contractor's recovery in relation to the Work, if any, under the terms of the Prime Contract with Owner, but in no event shall Contractor’s liability to Subcontractor exceed the actual value of Work performed up to the date of the suspension less all amounts previously paid to Subcontractor by Contractor.

15. Suspension by Contractor: Contractor may order the Subcontractor in writing to suspend all or any part of the Work for such period of time as may be determined to be appropriate for the convenience of Contractor. Phased work, interruptions of the Work for short periods of time, and seasonal interruptions shall not be considered a suspension. The Schedule shall be adjusted by Change Order for any increase in the time of performance of this Agreement caused by such suspension. However Contractor shall only be responsible to pay Subcontractor for actual Work performed up to the date of the suspension less all amounts previously paid to Subcontractor by Contractor.

Neither the Subcontract Price nor the Schedule shall be adjusted for any suspension, to the extent that performance would have been suspended, delayed, or interrupted, due in whole or in part to the fault or negligence of Subcontractor or by a cause for which Subcontractor would have been responsible. The Subcontract Price shall not be adjusted for any suspension to the extent that performance would have been suspended by a cause for which Subcontractor would have been entitled only to a time extension under this Agreement.

16. Notice of Default; Opportunity to Cure: If Subcontractor refuses or fails to perform the Work pursuant to this Agreement, fails or refuses to supply enough properly skilled workers, proper materials, or maintain the Schedule of Work, fails or refuses to make prompt payment to its workers, sub-subcontractors or suppliers, or fails or refuses to comply with laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, fails or refuses to remove any claim, allegation or cause identified in Section 12 above, or otherwise commits a material breach of a provision, duty, obligation or requirement of this Agreement, Subcontractor shall be deemed in default of this Agreement. If Subcontractor fails within forty-eight (48) hours after written notification (Notice) to commence and continue satisfactory correction of the default with diligence and promptness, then Contractor, without terminating this Agreement or prejudice to any other rights or remedies Contractor may have, shall have the right, but not the duty, to implement any or all of the following remedies or other action it deems reasonably necessary:


.1 supply workers, materials, equipment and facilities as Contractor deems necessary for the completion of the Work or any part which Subcontractor has failed to complete or perform after written notification, and charge the cost, including reasonable overhead, profit, attorneys' fees, costs and expenses to Subcontractor;

.2 contract with one or more additional contractors to perform such part of the Work as Contractor determines will provide the most expeditious completion of the Work, and charge the cost to Subcontractor as provided under Section 16.1; and/or

.3 withhold any payments due or to become due under this Agreement, or any other agreement with Subcontractor pending corrective action in amounts sufficient to cover losses and compel performance to the extent required by and to the satisfaction of Contractor.

In the event of an emergency affecting the safety of persons or property, Contractor may proceed as above without notice, but Contractor shall give Subcontractor notice promptly after the fact as a precondition of cost recovery.

17. Termination for Cause: Should Subcontractor fail to commence or satisfactorily continue correction of a default after expiration of the applicable Notice issued under Section 16, then Contractor may, at its sole discretion, and in addition to its other remedies, issue a written notice of termination to Subcontractor, at which time this Agreement is terminated. Upon Subcontractor’s receipt of the notice of termination, Subcontractor shall vacate the Project site and Contractor shall be entitled to retain and use all of Subcontractor’s materials, implements, equipment, appliances or tools furnished by, or belonging to Subcontractor and located at the Project site for the purpose of completing any remaining Work. Contractor may furnish those materials or equipment and/or employ such workers or subcontractors as Contractor deems necessary to maintain the orderly progress of the Work. All costs incurred by Contractor in performing the Work, including reasonable overhead, profit and attorneys' fees, costs and expenses, shall be deducted from any moneys due or to become due Subcontractor. Subcontractor shall be liable for the payment of any amount by which such expense may exceed the unpaid balance of the Subcontract Price, and shall pay such amount to Contractor immediately upon demand. Subcontractor shall be liable for all damages suffered by Contractor by reason of Subcontractor’s default, and exercise of the option by Contractor to terminate this Agreement shall not relieve Subcontractor of such liability, which shall survive termination. Subcontractor shall also immediately endeavor to cancel all existing orders and contracts on terms satisfactory to Contractor, or at Contractor's option, assign such orders and contracts to Contractor. Subcontractor shall include in its agreements with sub-subcontractors, material suppliers, and vendors appropriate provisions necessary to effectuate such assignment to Contractor. If Contractor terminates this Agreement pursuant to this Section 17, Subcontractor shall have no further claims against Contractor by reason of this Agreement. If Contractor terminates this Agreement under this Section 17 and it is later determined that the default termination was wrongful, such default termination automatically shall be converted to and treated as a Termination for Convenience under Section 18. In such event, Subcontractor shall be entitled to receive only the amounts payable under Section 18 for a Termination for Convenience and Subcontractor specifically waives any claim for any other amounts or damages, including without limitation any claim for consequential or indirect damages.

18. Termination for Convenience: Should Owner terminate the Prime Contract with Contractor or any part of such contract, or if Contractor chooses, at its sole discretion, to terminate this Agreement or any part thereof for its convenience, Contractor shall notify Subcontractor in writing of the termination. This Agreement shall be terminated upon Subcontractor’s receipt of the written notice of termination for convenience and Subcontractor shall immediately stop the Work, follow all of Contractor's instructions, and mitigate all costs. Subcontractor shall also immediately endeavor to cancel all existing orders and contracts on terms satisfactory to Contractor, or at Contractor's option, assign such orders and contracts to Contractor. Subcontractor shall include in its agreements with sub-subcontractors, material suppliers and vendors appropriate provisions necessary to effectuate such assignment to Contractor. In the event of Owner termination of the Prime Contract, Contractor's liability to Subcontractor, if any, shall be limited to the extent of Contractor's recovery in relation to Subcontractor’s Work under the Prime Contract. However, if Contractor receives additional compensation or damages from Owner on account of such termination of the Prime Contract, Subcontractor shall be entitled to receive from Contractor that part of the additional compensation or damages which is equitable under the circumstances. This provision shall not require Contractor to make any claim against Owner for additional compensation or damages in the event of suspension or termination, and failure of Contractor to prosecute such a claim against Owner shall not entitle Subcontractor to any claim for additional compensation or damages against Contractor or Owner. In the event of Contractor terminates this Agreement without Owner termination of the Prime Contract, such termination shall proceed according to the terms above, however Contractor shall only be liable for payment to Subcontractor for Work performed up to the date of termination hereunder, including overhead and profit on Work so performed and reasonable direct costs of terminating this Agreement. Subcontractor shall not be entitled to any further claim or lien against Contractor, Owner or the Project for any additional compensation or damages in the event of termination for convenience and payment in accordance with this Section 18.

19. Green Building/LEED: If this Project or the Subcontract Documents require certification by the United States Green Building Council or a similar organization (e.g. LEED Certified, Silver, Gold or Platinum, or as otherwise or similarly designated), Subcontractor agrees to strictly comply with all processes, procedures, requirements, duties and obligations necessary to obtain the identified LEED or Green Building goal to the extent required or in relation to the Work under the Subcontract Documents. This obligation shall include, by way of example but not limitation, compliance with all documentary requirements of the certifying organization and job site protocols prior to and during execution of the Work and after completion of the Work. Subcontractor’s


failure to timely comply with all requirements of the certifying organization and reasonable requests of Contractor as it relates to its Work under this Agreement and provisions of this Section 19 shall constitute a material breach of this Agreement.

20. Dispute Resolution: .1 Initial Dispute Resolution: If a dispute arises out of or relates to this Agreement or its breach, the parties shall endeavor

to settle the dispute first through direct discussions with the principals. If the dispute cannot be resolved through direct discussions, then the parties shall, at the election of Contractor, participate in mediation with a mutually acceptable mediator, before recourse to any other form of binding dispute resolution. If the parties cannot agree upon a mediator, then the party requesting mediation shall file a mediation demand with JAMS, at the location nearest to the Project, who shall appoint a mediator according to their rules. The parties shall share the mediator’s and any other administrative fees equally. The locale of any mediation shall be in the county in which the Project is located, unless otherwise mutually agreed by the parties.

.2 Work Continuation and Payment: Subcontractor shall continue the Subcontract Work and maintain the Schedule during any dispute resolution proceedings.

.3 No limitation of Rights or Remedies: Nothing in this Section 20 shall limit any rights or remedies not otherwise expressly waived by Subcontractor that Subcontractor may have under lien laws or payment bonds.

.4 Multiparty Proceeding: The parties agree that to the extent permitted by applicable contracts, all parties necessary to resolve a claim may be joined in the same dispute resolution proceeding. To the extent disputes between Contractor and Subcontractor involve in whole or in part disputes between Contractor and Owner, disputes between Subcontractor and Contractor shall be decided by the same tribunal and in the same forum as disputes between Contractor and Owner. In such event, Subcontractor agrees to be joined to proceedings between Owner and Contractor at the Contractor’s discretion.

.5 Disputes Between Contractor and Subcontractor: In the event that the provisions for resolution of disputes between Contractor and Owner contained in the Prime Contract do not permit consolidation or joinder with disputes of third parties, such as Subcontractor, resolution of disputes between Subcontractor and Contractor involving in whole or in part disputes between Contractor and Owner shall be stayed pending conclusion of any dispute resolution proceeding between Contractor and Owner. At the conclusion of those proceedings, disputes between Subcontractor and Contractor shall be subject again to mediation pursuant to Section 20.1. However, Subcontractor shall be bound by the results of the dispute resolution proceeding between Contractor and Owner as to disputes involving the Work under this Agreement to the extent, at Contractor’s discretion, Subcontractor has provided to Contractor and paid for all legal services, evidence, and witnesses necessary for Contractor to have the dispute resolved in the Contractor-Owner dispute resolution proceeding.

.6 Any dispute not resolved by mediation shall be decided, at the election of Contractor, by binding arbitration. In the event that Contractor elects to arbitrate a dispute, the party initiating arbitration shall do so by submitting an arbitration demand to JAMS at the location nearest to the Project for administration in accordance with JAMS construction arbitration rules. The locale of any arbitration shall be in the state in which the Project is located. Disputes that the Contractor does not elect to arbitrate shall be decided by litigation before a judge and the parties expressly waive their right to a jury trial to the fullest extent allowed by law.

Contractor:_________ Subcontractor:__________

21. Clean and Orderly Premises: Subcontractor shall comply with the job site rules and policies of Contractor. During the course of construction, Subcontractor shall remove its waste materials and maintain the premises at all times in a safe, clean, and orderly condition. Subcontractor is required to broom clean their Work areas at the end of each work day. If Subcontractor fails to clean up within one (1) business day after written notification by Contractor to do so, Contractor may proceed with that function as it deems necessary and in the manner it may deem expedient, and will deduct the cost thereof from monies due under this Agreement. After completion of all Work under this Agreement, and before making application for acceptance of the Work, Subcontractor shall clean the site of its operations, including any areas that have been used by Subcontractor in connection with the Work, and shall remove all debris, surplus material, equipment, and all temporary construction or facilities of whatever nature, unless otherwise approved by Contractor. Final acceptance of the Work by Owner and Contractor will be withheld until Subcontractor has satisfactorily complied with the foregoing requirements for final cleanup of the Project site.

22. Safety: Subcontractor shall meet or exceed Contractor’s minimum safety requirements and shall perform the Work in a safe and reasonable manner and at all times comply with the terms and conditions of Exhibit E – Subcontractor Safety Requirements, as it may be modified from time to time, and all applicable laws and regulations. If use of Unmanned Aerial Systems (UAS) are contemplated by Subcontractor, Subcontractor shall operate in compliance with the UAS requirements of Exhibit E. Contractor has the right to exclude from the Project site Subcontractor, including any of Subcontractor's employees, agents, sub-subcontractors, consultants, suppliers and/or any other entity performing the Work, who Contractor in its sole discretion determines violates any provision of this Agreement, including but not limited to the Drug Free Workplace policy and the project safety requirements in Exhibit E. Violation of this provision is also cause for termination for cause due to the fault of Subcontractor. To the extent that any term, condition, duty or requirement in this Section 22 conflicts with any terms, conditions, duties or requirements of Exhibit


E or any other Subcontract Document, the terms, conditions, duties and requirements providing the greatest protection to Owner, Contractor, Work and/or Project shall take precedence and apply.

Stair Towers: In an effort to enhance worker safety, Subcontractor shall not perform any Work utilizing extension ladders to access heights of 36 feet or more, including any such Work that may be on the roof 36 feet or higher. If the Project has added a stair tower, Subcontractor may use the stair tower to perform its Work, subject to the following conditions:

1. Subcontractor agrees to use the stair tower or equivalent in performance of its Work. Extension ladders shall not be allowed for reaching heights of 36 continuous feet or more.

2. If the stair tower has been provided by or through Contractor, neither Subcontractor nor any of its employees, vendors, or sub-tier sub-subcontractors shall access any stair tower provided by Contractor without first executing, and without modification to, Contractor’s Stair Tower Use and Access Agreement on behalf of each respective company and its employees. If the stair tower is provided by another entity other than Contractor, Subcontractor agrees to execute any other access agreements required by the stair tower provider.

3. If the stair tower has been provided by or through Contractor, Subcontractor shall require of each employee accessing the stair tower to execute the agreement titled, “Notice: Scaffold/Stair Tower Users,” acknowledging minimum safety requirements and guidelines for stair tower use. Each person signing such an agreement shall strictly comply with the requirements therein.

4. If Subcontractor refuses or fails to use the stair tower for any reason, Subcontractor shall propose to Contractor acceptable alternate means of accessing heights 36 feet or higher, and any such alternative means being at Subcontractor’s sole cost and expense with no change to the Subcontract Price. In any event, Subcontractor shall not utilize extension ladders to access heights in excess of 36 feet and has included any and all cost, schedule, and other potential impacts in the Subcontract Price.

23. Hazardous Materials: In the event that hazardous substances of a type of which an employer is required by law to notify its employees are being used or stored on the site by Subcontractor, Subcontractor’s sub-subcontractors and anyone directly or indirectly employed or otherwise retained by them or either of them, Subcontractor shall immediately provide written notice of the chemical composition thereof (including, without limitation, a copy of the applicable Material Safety Data Sheet) to Contractor in sufficient time to permit compliance with such laws by Contractor, other subcontractors and other employers on the site. In the event that Subcontractor encounters on the site material reasonably believed to be hazardous substances as defined by applicable federal, state, or local law (including, without limitation, asbestos or polychlorinated biphenyl) which has not been rendered harmless, the Subcontractor shall immediately stop Work in the area affected and immediately report the condition to Contractor in writing. Work in the affected area shall resume when such hazardous substances have been rendered harmless or removed as determined by Contractor at its sole and absolute discretion. To the extent of Subcontractor’s responsibilities hereunder, Subcontractor does indemnify and save harmless Contractor and Owner from and against any and all loss, injury, claims, actions, proceedings, liability, damages, fines, penalties, cost and expenses, including legal fees and disbursements, caused or occasioned directly or indirectly by Subcontractor in regard to such hazardous substances.

No disposal of refined petroleum products, (gasoline, diesel fuel, motor oil, grease, coolant, etc.), which have chemical constituents considered hazardous by EPA are allowed at the Project site. Should soils be contaminated as a result of accidental spills by Subcontractor, or its sub-subcontractors and suppliers, clean-up pursuant to EPA requirements shall be done at Subcontractor's expense.

24. Stormwater Pollution Prevention Plan: Subcontractor shall comply with all applicable regulatory laws, ordinances, rules, regulations, and requirements relating to storm water discharge and the control of erosion or sediment discharges from the Project and shall develop, implement and maintain a comprehensive stormwater control best management practice plan regarding the Work and as it relates to or impacts the SWPPP. Immediately upon notice of any possible violation hereunder, Subcontractor shall commence all corrective or remedial measures necessary to fully comply with any regulatory requirements. In the event, however, Subcontractor fails to timely commence corrective or remedial measures, Contractor, at its sole discretion may, with no further notice to Subcontractor, take any action necessary to comply with such regulatory requirements and withhold the cost of such action(s), from any amount(s) due under this Agreement. Further, Subcontractor shall indemnify, defend, and hold harmless Contractor and Owner for any fines, fees, costs or other damages resulting from any such citation(s) or violation(s) associated with the Work and Contractor may withhold the amount of any expense or cost associated with such citations or violations from any amount(s) due to Subcontractor under this Agreement.

25. NPDES Requirements: Subcontractor shall take adequate precautions to prevent construction and excavation debris from entering surface waters. All aspects of the Storm Water Management Program shall be adhered to in compliance with the NPDES Permit applicable to the Work. Subcontractor will be responsible for erosion control to protect its Work until all Work has been accepted. The erosion control shall comply with all provisions of the United States’ NPDES and any other applicable state or local requirements pertaining to erosion control.


26. Erosion, Dust, Noise Control; Air Quality; Export Material: During construction operations, Subcontractor shall be responsible for all erosion control and the cost thereof in relation to its Work. It shall be Subcontractor’s sole responsibility to protect the Work completed or in progress in the event of a major storm and all costs for repairs, pumping, removals, or reconstruction of damaged items shall be the responsibility of Subcontractor without reimbursement or compensation of any kind. Subcontractor shall implement a program to minimize the amount of dust generated by the Work. All dust particles shall be confined to the Project site and shall not create a nuisance to adjoining properties. At all times during construction and until the Project is complete, Subcontractor, when it or its sub-subcontractors are operating equipment on the Project, shall prevent the formation of any airborne dust nuisance. Subcontractor will be responsible for any damage caused by dust from its Work, including but not limited to citations, fines, lawsuits or charges resulting from dust nuisance. Utmost regard shall be extended to nearby properties such that access, parking, equipment, staging, and materials delivery shall be maintained as directed by Contractor. Noise restrictions shall be adhered to completely during off and/or overtime hours. Any particular noise ordinances applicable to the Project shall be followed fully.

Subcontractor and/or its sub-subcontractors and material suppliers shall be solely responsible for providing for the safe and sufficient storage, handling, and transportation of any and all materials to be utilized in the Work, including but not limited to sand, gravel, rock, excavated materials, asphalt and base, pipe and related material, supplies, and hardware. Any materials which must be temporarily stockpiled on or in the vicinity of the Project site shall be done so as not to interfere unduly with the public safety or established temporary public traffic routing in or adjacent to the construction zone. Subcontractor shall be responsible for identifying and procuring any and all temporary storage sites for the stockpiling of imported, exported, or temporarily stockpiled materials.

27. Subcontractor’s Superintendent/Employees: Subcontractor shall at all times have present at the Project site a competent superintendent or foreman, or other person in charge of the Work, who shall be a direct employee of Subcontractor and who shall be authorized and competent to receive instruction from Contractor, to make such decisions as may be necessary for the prompt and efficient performance of this Agreement, and to communicate clearly with Contractor and authorized inspectors. Subcontractor shall not employ on the job any person not skilled in the work assigned to such person. Prior to start of construction, Subcontractor shall designate the superintendent, foreman, or other person in charge of the Work and provide phone numbers for which same can be reached both during normal working hours and after hours in case of emergency. If Subcontractor’s superintendent is to be changed during the performance of this Agreement, Subcontractor will obtain approval from Contractor. Any employee of Subcontractor who is adjudged by Contractor to be incompetent, disorderly, unreliable or otherwise unsatisfactory shall be immediately removed from the Project.

28. Effect of Payment: No payment made under this Agreement, except the final payment, shall be conclusive evidence of performance of this Agreement, either in whole or in part, and no payment shall be construed to be an acceptance by Contractor or Owner of defective or deficient Work or improper materials.

29. Bonds: With the execution of this Agreement, Subcontractor represents that it is bondable and shall, if required by Contractor or this Agreement, obtain a payment bond and a performance bond each in an amount equal to 100% of the Subcontract Price, as such Subcontract Price may be adjusted pursuant to this Agreement. Said bonds shall be secured by a surety company and on forms acceptable to Contractor. The costs for any bonds required by Subcontractor are included in the Subcontract Price unless such request occurs after execution of this Agreement, in which case the costs of such bonds shall be subject to a claim by Subcontractor for an increase in the Subcontract Price. Subcontractor’s inability to furnish any bonds requested by Contractor shall constitute a breach of this Agreement by Subcontractor entitling Contractor to terminate this Agreement pursuant to Sections 16 and 17.

30. Damage to Work in Place: Subcontractor shall protect Subcontractor’s Work, any other existing Work, and the real and personal property of Owner, Contractor, other subcontractors, or other parties from damage arising out of or related to Subcontractor’s Work or its failure to protect the Work. In the event that Subcontractor’s Work or Subcontractor’s agents or employees should, by act or omission, cause damage to ongoing Work in place, finished Work, or any other party’s work in progress or finished work, Contractor shall have the right to charge Subcontractor with the reasonable cost of repair, remediation and restoration. At Contractor’s option, Contractor may withhold sums due and owing to Subcontractor under this Agreement or any other agreement with Subcontractor or an affiliate of Subcontractor to pay the reasonable cost of said damages, including costs of investigation, testing, retention of experts/engineers, repair, remediation and restoration.

31. Title to Materials: Upon and after execution of this Agreement, all materials delivered to the Project site and installed by Subcontractor and paid for by Contractor become and are property of Owner, subject to Owner’s payment to Contractor for such materials.

32. Warranty: Subcontractor guarantees its Work against all defects of workmanship, materials and equipment to the greatest extent and duration called for in the plans, specifications, addenda, amendments, Prime Contract and any other Subcontract Document, but in no event less than one (1) year from the date of Certificate of Occupancy or Certificate of Substantial Completion, as applicable, whichever is later. Without limiting the generality of the foregoing, Subcontractor warrants to Contractor and Owner that all materials and equipment furnished under this Agreement shall be new and of first class quality,


unless otherwise permitted by the other Subcontract Documents and that the Work will be free of defects and will conform to the requirements of the Subcontract Documents. Subcontractor shall assign or cause to be assigned all warranties for equipment and products to the Owner as a condition of final payment. Subcontractor shall commence repairs of any warrantable Work within forty-eight (48) hours of written notice by Contractor, and said warranty repair work shall be executed diligently and expeditiously until completion. Subcontractor warrants any repair work for an additional warranty period equal to that of the original Work, commencing upon completion of the repair work. Upon request of Contractor and as a condition precedent to Closeout of the Subcontractor’s Work and final payment to Subcontractor (see Section 10), Subcontractor shall execute and return to Contractor the Subcontractor Warranty Form attached as Exhibit H this Agreement. Subcontractor’s warranty obligations shall be considered part of its ongoing operations. Subcontractor’s warranty obligations are not an exclusive remedy and in no way limit the obligations of Subcontractor under this Agreement or applicable law.

33. Inspection: All construction workmanship shall be subject to inspection and approval by the applicable inspection agency, the Owner, and Contractor. Accordingly, the applicable inspection agency, Owner, and Contractor or their authorized agents shall, at all times, have access to the Work during construction and shall be furnished with every reasonable facility for ascertaining full knowledge with respect to the progress, workmanship, and character of materials used and employed in the Work. Subcontractor shall notify Contractor forty-eight (48) hours in advance when it will require inspection for either material or Work to be done and no Work shall be done in the absence of an authorized inspector, if Work must be inspected as accomplished. The cost for all testing, surveying and inspection provided by the applicable inspection agency, Owner, or Contractor, shall be excluded from the Work; however, if any tests do not meet minimum standards, any survey stakes that Subcontractor destroys or loses, and any inspections that do not pass, then the cost for any re-test, re-survey and re-inspection shall be the responsibility of Subcontractor. The inspection of the Work shall not relieve Subcontractor of any of its obligations to fulfill this Agreement as prescribed.

34. Sub-Subcontractors (Lower Tier Subcontractors): Prior to commencement of any portion of the Work, Subcontractor shall identify to Contractor all sub-subcontractor(s) and material suppliers Subcontractor intends to use to perform any portion of the Work. If Subcontractor intends to sub-subcontract a portion of the Work, Subcontractor will only do so by written contract with any such sub-subcontractor or material supplier. Any such written contract between Subcontractor and any sub-subcontractor or material supplier (i.e. sub-subcontract) for any portion of the Work shall contain and incorporate terms and conditions requiring and incorporating at minimum each and every term, condition, right, obligation and duty as contained in the Subcontract Documents. Subcontractor shall ensure that such agreements with sub-subcontractors and suppliers do not contain any limitations on Contractor’s rights under this Agreement, including, for example, the assignment of such agreements to Contractor as provided herein. Contractor reserves the absolute right to object to or reject Subcontractor’s use of a particular sub-subcontractor or material supplier upon reasonable basis, upon which objection Subcontractor shall not contract with any such rejected sub-subcontractor or material supplier. However, any such objection or rejection shall not in any way limit, reduce or void this Agreement or Subcontractor’s performance of the Work as specified in the Subcontract Documents.

35. Severability: Should any provision of this Agreement at any time during its term be in conflict with any federal or state law or any ruling or regulation of a federal or state agency, then such provision shall continue in effect only to the extent permitted by law. In the event any provision of this Agreement is thus held inoperative, the remaining provisions of this Agreement shall, nevertheless, remain in full force and effect.

36. Merger and Integration: This Agreement and the documents comprising the Subcontract Documents contain the entire, exclusive and integrated agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior negotiations, representations, agreements and understandings, either written or oral, with respect to the subject matter herein. This Agreement may only be amended by a written document duly executed by Contractor and Subcontractor.

37. Choice of Law: This Agreement shall be interpreted under the laws of the state where the Project is located.

38. Non-waiver: The failure by Contractor to require performance of any provision in this Agreement shall not affect Contractor’s right to require performance at any time thereafter, nor shall a waiver by Contractor of any breach or default of this Agreement by Subcontractor constitute a waiver of any subsequent breach or default by Subcontractor or a waiver of the provision itself.

39. Right to Audit: Subcontractor shall keep, and require each of its sub-subcontractors, if any, to keep, in conformance with the terms herein, such full and detailed accounts as are necessary for proper financial management under this Agreement. Contractor and Owner, to the extent allowed in the Prime Contract, shall be afforded access to all Subcontractor's records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to this Agreement. Subcontractor shall preserve all such records for a period of three years after the final payment or longer where required by law or the Prime Contract.

40. Confidentiality: To the extent the Prime Contract provides for the confidentiality of any of Owner's proprietary or otherwise confidential information disclosed in connection with the performance of this Agreement or if Owner requires the parties to execute a confidentiality agreement, Subcontractor agrees to be equally bound by Owner's confidentiality requirements and execute any agreements required by Owner to that effect. Additionally, Subcontractor agrees to hold confidential the terms of this


Agreement, the Subcontract Documents, and any other documents identified by Contractor as “confidential,” however Subcontractor shall not be responsible to hold documents or information confidential that are public knowledge, were previously released to the public by Contractor prior to execution of this Agreement, or which must be disclosed pursuant to the law or in furtherance of legal proceedings related to this Agreement. Additionally, Subcontractor shall only disclose to parties necessary to perform the Work information, confidential or otherwise, necessary to perform the Work.

41. Assignment of Subcontract: Neither this agreement, nor any portion hereof or any of the payments hereunder, shall be subcontracted or assigned without the prior written consent of Contractor and, if such consent is given all such payments are subject to the terms and conditions of the Subcontract Documents. Any assignment without prior written consent shall vest no rights in the assignee against the Contractor.

If the Prime Contract has a provision requiring the assignment of this Agreement to Owner or other parties, such assignment is effective under the terms and conditions identified in the Prime Contract, provided Owner or indicated party has accepted the assignment by notifying Subcontractor in writing, or as otherwise specified in the Prime Contract. Any such assignment is subject to the prior rights of a surety that may be obligated under the Contractor's bond, if any. Subcontractor consents to such assignment and agrees to be bound to the assignee by the terms of this Agreement and the Prime Contract.

Similarly, if the Project lender or other entity providing financial resources for the Project requires as a condition of funding or other reason that this Agreement be assigned to the Project lender or other entity providing financial resources for the Project for any reason, including upon default of Owner under the lending or financial agreement or any other cause, Subcontractor consents to such assignment and agrees to be bound to the assignee by the terms of this Agreement.

42. Administrative Charges: Subcontractor acknowledges and understands that its failure to perform its Work properly and in a timely manner, including timely responses to Contractor’s requests for information, Subcontractor’s timely submittals, compliance with jobsite and safety rules, and similar requirements and requests incidental to Subcontractor’s Work, will cause Contractor to incur increased administrative costs and expenses. Therefore if Subcontractor fails to abide by the terms of this Agreement, the Schedule, jobsite rules, Contractor’s safety requirements, requests of Contractor, and similar requirements incidental to Subcontractor’s Work, Subcontractor shall incur an Administrative Charge.

For the first violation, Subcontractor shall receive a verbal or written warning by Contractor.

For a second violation, the Administrative Charge shall be $100.00.

For a third violation, the Administrative Charge shall be $250.00.

For a fourth and any subsequent violation, the Administrative Charge shall be $500.00.

Such Administrative Charges shall be issued in writing and are due and payable upon such issuance to Subcontractor. Contractor may withhold any Administrative Charge out of monies otherwise due Subcontractor.

These Administrative Charges to Subcontractor are in addition to and in no way in limitation of Contractor’s other rights and remedies specified in this Agreement or Subcontract Documents, and are a reasonable estimate of Contractor’s increased costs to administer the Project.

43. Consequential Damages: If the Prime Contract between Owner and Contractor provides for a mutual waiver of consequential damages by Owner and Contractor, Contractor and Subcontractor waive claims against each other for such consequential damages arising out of or relating to this Agreement to the same extent as the waiver in the Prime Contract applicable to Owner and Contractor. Similarly, Subcontractor shall obtain from its sub-subcontractors, consultants, material suppliers and any other party performing the Work on behalf of Subcontractor mutual waivers of consequential damages that correspond to Subcontractor's waiver of consequential damages. To the extent applicable, this mutual waiver applies to consequential damages due to termination by Contractor or Owner in accordance with this Agreement or the agreement between Owner and Contractor.

To the extent the Prime Contract between Owner and Contractor provides for a mutual waiver of consequential damages by Owner and Contractor, damages for which Contractor is liable will not be deemed consequential damages for the purpose of this waiver. Similarly, to the extent any Subcontractor subcontract or other agreement provides for a mutual waiver of consequential damages, damages for which Subcontractor is liable to its sub-subcontractors, consultants, material suppliers and any other party performing the Work due to the fault of Owner or Contractor will not be deemed consequential damages for the purpose of this waiver.

44. Notices: Written notice, as required in this Agreement, is deemed duly provided by the party providing written notice if delivered in person to a manager (i.e. project superintendent or higher) of the firm or entity or to an officer of the Corporation for which it was intended, or if delivered at or sent by registered, certified or overnight mail with return receipt or proof of recipient’s receipt to the last business address known to the party giving notice.

45. Drug Free Workplace: Subcontractor shall maintain a written Drug Free Workplace policy for all of its operations under this Agreement that ensures that its workforce, including the workforces of its subcontractors, consultants, suppliers and any other


person or entity performing the Work, is at all times free from the influence of illegal substances, as defined under any applicable federal or state law, and alcohol in performance of the Work, and strictly complies with Federal and State Drug-Free Workplace Acts and all other federal, state, and local laws that apply to the use of illegal drugs and misuse of alcohol in the workplace and in performance of the Work. Subcontractor shall include the substance of this Section 45 in all of its contracts and agreements with any subcontractors, consultants, suppliers or any other persons or entities performing the Work. Subcontractor agrees that its policy shall contain pre-employment screening, require any person reasonably suspected of the behavior or activity set forth and any person involved in an accident or other incident on the Project, Contractor’s property or other workplace which results in or could have resulted in personal injury or property damage to submit to a drug and/or alcohol test by a NIDA approved laboratory at Subcontractor’s expense. Subcontractor agrees to have the tests conducted within two (2) hours of the Contractor’s request or the accident or incident, and to promptly remove any person refusing to submit to such test from the Project. Subcontractors who are required to submit to a drug test shall not return to the Project without (1) Contractor’s receipt of confirmation satisfactory to Contractor that a drug test was performed in compliance with the requirements of this Section, (2) Contractor’s receipt of a letter (on Contractor's form or equivalent) addressed to Contractor stating that the person is fit to return to duty, and (3) Contractor’s approval. Subcontractor’s failure to strictly comply with the provisions of this Section 45, in whole or in part shall constitute a material breach of this Agreement.

46. Equal Employment Opportunity: Subcontractor certifies that it is an equal opportunity employer and agrees that it complies with all applicable laws prohibiting discrimination based on race, color, creed, sex, age, national origin or ancestry, physical or mental disability, pregnancy or related medical condition, veteran status, marital status, medical condition, sexual orientation, genetic information, as well as any other category protected by applicable federal, state, or local laws. All such discrimination is unlawful, and all persons involved in the operations of Contractor, including Subcontractor and any entity performing the Work on behalf of Subcontractor, are prohibited from engaging in this type of conduct. This provision applies to all employment practices, including recruitment, hiring, compensation, benefits, promotion, training, transfer, discipline, layoff, recall, and termination. Subcontractor’s failure to strictly comply with the provisions of this Section 46, in whole or in part shall constitute a material breach of this Agreement.

47. Ethics: Contractor’s reputation for integrity and fair dealing is one of its most important and valuable assets. Contractor unequivocally expects all of its employees and business partners and associates, including subcontractors, architects, engineers, vendors, and material suppliers (individually and collectively, “Project Team”), as well as each of the Project Team’s respective officers, employees and representatives, to conform to and comply with all federal, state and local laws, codes, statutes, rules and regulations relating to ethical performance of its work or services, including the prohibition against offering or receiving bribes or kickbacks in any form (collectively “Ethical Standards”). As a representative of Contractor, Subcontractor must ensure that its actions reflect Contractor’s commitment to honesty and fair dealing. Subcontractor is expected to report to Contractor any actual or suspected violations of these Ethical Standards by its employees or any other persons involved with the Project, which reports may be made anonymously and/or confidentially. Violations of such Ethical Standards by Subcontractor, including Contractor’s good faith and reasonable belief that violations of these Ethical Standards by Subcontractor have occurred, shall be considered a material breach of this Agreement. In such event, Contractor shall be entitled to all of its rights and remedies under this Agreement and at law and equity.

48. The Immigration Reform and Control Act (IRCA): Subcontractor acknowledges, represents and warrants that Subcontractor is aware of and understands the IRCA, that Subcontractor is in compliance with the IRCA, and that Subcontractor is not knowingly employing workers who are not authorized to work in the United States. Subcontractor agrees that it will not employ any worker under this Agreement for whom Subcontractor has not completed and maintained I-9 verification. Subcontractor represents and warrants that it will not subcontract to or utilize labor sources that it knows or has reason to know violate the IRCA.

49. Survival: Subcontractor’s duties, obligations to Contractor and responsibilities under this Agreement shall survive the completion of the Work under this Agreement and/or any termination of this Agreement.

50. Miscellaneous: The titles given to the Sections and Paragraphs of this Agreement are for ease of reference only and shall not be relied upon or cited for any other purpose. Contractor and Subcontractor expressly agree that this Agreement was jointly drafted, and that they both had an opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in favor of either party, but shall be construed in a neutral manner.

51. Licensing: If Subcontractor is required by law to be licensed and regulated by the Contractor’s State License Board or other applicable licensing agency/department, Subcontractor shall strictly comply with the state and local agencies licensing provisions in the State, City and/or County, and/or other jurisdiction where the Work is performed (“Licensing Requirements”). Subcontractor shall cause each of Subcontractor’s sub-subcontractors and any other persons or entities of any tier retained by Subcontractor to perform any portion of the Work to purchase, obtain, and strictly comply with the abovementioned Licensing Requirements and to maintain compliance for the duration of the Work. Further, prior to commencing any portion of the Work, Subcontractor shall provide to Contractor and shall cause each of Subcontractor’s sub-subcontractors and any other persons or


entities of any tier retained by Subcontractor to perform any portion of the Work to provide to Contractor, a copy of every license required by law.

52. Independent Contractor: Subcontractor is acting as an independent contractor for all purposes under the Subcontract Documents and no documents, actions, direction, instruction, assertions, or otherwise shall be construed to create an employer/employee relationship, partnership, joint venture, or other similar relationship between Contractor and Subcontractor or Subcontractor’s employees, sub-subcontractors, vendors, suppliers, and/or any other persons or entities of any tier or anyone for whom Subcontractor is responsible. Subcontractor further agrees that Subcontractor (1) has no authority to, and shall not, act as an agent for or on behalf of Contractor or represent or bind it in any manner; and (2) Subcontractor shall not be entitled to any of the benefits afforded to Contractor’s employees.

In Witness Whereof, the parties hereto have executed this Agreement for themselves, their heirs, executors, successors, administrators, and assigns on the day and year first above written.

CONTRACTOR: Alston Construction Company, Inc., a California Corporation

SUBCONTRACTOR:

BY: Date: BY: Date:

,Project Manager

Signature

Alabama License #38935 Print Name & Title

___Corporation ___Partnership ___Proprietorship

State Business License #______________

Expires: ___________________________

State Contractor License #______________

Expires: ___________________________

City Business License # ______________

Expires: ___________________________

County Business License # ____________

Expires: __________________________


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