Date ____________
Subcontractor Agreement
This SUBCONTRACTOR AGREEMENT is made and entered into between ___________________________________ and _______________________________________________ hereinafter referred to as “CONTRACTOR” AND _______________________________ hereinafter referred to as “SUBCONTRACTOR” and hereby provides as follows: Subcontractor has agreed to the terms and provisions as set forth herein, and executes this Subcontractor Agreement with Contractor for the c onstruction of the following construction project owned by ____________________ herein sometimes referred to as “Owner.” Each of the parties acknowledges and agrees that the Subcontractor’s performance under the Subcontractor Agreement shall in be in accordance with and shall include the terms and provisions of all Plans, Drawings, Specification, Contract Documents and all Addendums which are provided herewith and/or listed herein below, and which by this reference are fully made a part of this Subcontractor Agreement as if attached hereto and repeated herein. For purposes hereof, the Contract Documents shall mean and include the following: Contract Documents
1. Pric Pricee Adde Addend ndum um(s (s)) 2. Billing Package
3. Adde Addend ndum um “A” (Gen (Gener eral al Work Work Spec Specif ific icat atio ions ns)) 4. Addendum “B” (Scope of Work)
Subcontractor hereby covenants and agrees to abide by all of the terms and conditions set forth in this Subcontractor Agreement, and as indicated in the Contract Documents including all Plans, Specifications and Addendums which are referred to and incorporated herein, all which are deemed to be material terms, covenants and agreements of this Subcontractor Agreement. 1. INDEPENDENT INVESTIGATION INVESTIGATION BY SUBCONTRACTOR. Subcontractor has satisfied itself by its own investigation and research, regarding all the conditions affecting the work to be done and materials to be furnished ,and as to the meaning and intention of the Plans and Specifications and the general conditions thereof, referred to herein, and basing its conclusion to execute this Subcontract on such investigation, independent of any information prepared or furnished by Contractor, agrees to furnish certain completed work, herein described, as part of said said project. No estimate
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or bid of Subcontractor preceding this Subcontract, and no verbal agreement or conversation with any representative of Owner of Contractor, either before or after the execution of this Subcontract, shall affect or modify any of the terms or obligations contained herein. All provisions of the above-mentioned Contract Documents, Specifications, Addenda and Drawings which are applicable to this Subcontract or which in any way affect the work herein described, shall have the same effect as if written in full in this Subcontract Agreement. 2. SCOPE OF WORK COVERED. Subcontractor agrees to furnish all labor, material, supplies, equipment, dev ices, machinery, tools, and other facilities of every kind an d description required for the prompt and efficient execution and completion of the work described herein and to perform all work necessary to complete the following to the full satisfaction of Contractor: Per Scope of Work (Addendum“B”)__________________________________________________________ _______________________________________________________________________ _ The term of this Subcontractor Agreement and Subcontractor’s obligation to perform hereunder shall continue from the date hereof until such time as all of the foregoing work in the subject Subdivision/Project is completed, or until such time a s this Subcontractor Agreement is terminated, or as otherwise provided for in the applicable Price Addendum attached hereto. 3. CONSIDERATION. Said project shall be completed in strict accordance with the above-mentioned Contract Documents, including all Plans, Specifications and Drawings, as may be
changed or modified from time to time, and in such amounts and quantities of units as specified in the Price Addendum(s). It is specifically agreed by the parties that the compensation to be paid by Contractor to Subcontractor shall be only for completed work and installed material specified to be performed in Purchase Orders issued from me to time under this Subcontractor. Following
the issuance of a Purchase Order to Subcontractor, Contractor shall not be limited to issuance of any Notification to commence work under this Subcontract during the effective date of a Price Addendum. The parties specifically agree and intend that the compensation to be paid to Subcontractor shall be governed by the applicable Price Addendum effective on the date of issuance of the Purchase Order(s), note the date when Subcontractor actually commences the work or provides materials. 4. PAYMENT SCHEDULE AND RELEASES. Provided that Contractor receives payment from Owner, Contractor agrees to pay Subcontractor in accordance with the Contractor’s payment criteria, schedule and Vendor
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Billing Procedure, all of which are provided to Subcontractor as an Addendum hereto, and which are incorporated within and made a material part of this Subcontractor Agreement. Subcontractor further acknowledges and agrees that Contractor’s receipt of payment from the Owner is a specific condition precedent to the Contractor’s obligation to pay the Subcontractor and the Subcontractor’s right to receive payment from the Contractor. Subcontractor further acknowledges and agrees that Contractor has the right to make reasonable modifications to the Contractor’s payment criteria, schedule and Vendor Billing Procedures which exist on the date of this Subcontractor Agreement and which may be modified thereafter by Contractor. Subcontractor acknowledges and agrees that its full and timely compliance with the foregoing payment criteria, the Contractor’s schedule and Vendor Billing Procedure each constitutes a separate condition precedent to the Contractor’s obligation to pay Subcontractor. Subcontractor acknowledges the importance of Subcontractor’s timely compliance with and completion of the requirements of the Vendor Payment Procedure policy, including the prompt and timely submission of all Purchase Order Payment documents and Variance Purchase Order Payment documents to Contractor’s office no
later than ninety (90) days after close of escrow and transfer of title of the residence and property to a third party Buyer from Contractor to Owner. The Subcontractor further acknowledges and agrees that its failure to timely complete the Vendor Payment Procedure Policy and its failure to timely submit all required documentation to Contractor for payment causes delay, costs, and additional administrative expenses to Contractor, which delay, costs and additional administrative expenses are acknowledged to for such delay by Subcontractor, Subcontractor further agrees and acknowledges that said delay, associated costs and administrative expenses may be incapable of precise calculation, but notwithstanding that fact, the delay, costs and administrative expenses are significant. Accordingly, Subcontractor agrees that in the event that the prompt and timely submission of all Purchase Order Payment documents and Variance Purchase Order Payment documents are not made on or before ninety (90) days after close of escrow and transfer of title as referred to above, then Contractor may, in its sole and absolute discretion, refuse to make payment of the full amount which is not timely submitted for payment to Contractor by the Subcontractor. ____________________________ Subcontractor’s Initials At all times during the term of this Subcontractor Agreement, Subcontractor shall maintain and provide to Contractor a complete and up to date list of the full names, addresses and telephone numbers of all material suppliers, and/or materialmen, who provide or with whom
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Subcontractor has contracted or hired to provide materials for the work to be performed in accordance with this Subcontractor Agreement. Subcontractor further agrees to furnish Contractor such receipts, vouchers, releases of claims of all laborers and materialmen and any other releases for the performance of work or furnishing material pursuant to this Subcontract, all of which shall be in a form satisfactory to Owner and Contractor. It is further agreed that Contractor shall not be required to make payment hereunder unless and until such releases are furnished to Contractor. Payment of any amount by Contractor to Subcontractor shall not be construed as evidence of acceptance of any part of Subcontractor’s work hereunder. Contractor shall not be required to pay and shall not be liable for payment to Subcontractor if Contractor has not received payment from Owner. Contractor reserves the right, and Subcontractor agrees, that the Contractor at any time and from time to time shall have the right to pay directly for any material, equipment, or other services supplied to the Project as part of this Subcontractor Agreement by check (a “joint check”) to the order of (i) the Subcontractor, and (ii) any and all suppliers of material, equipment, or other services to the Project, and (iii) any and all other Subcontractors if determined to be appropriate by Contractor, Subcontractor acknowledges and agrees that the issuance of joint checks by Contractor shall not be deemed or construed as creating (i) privity of contract by and between the Contractor and any supplier (ii) a relation of guarantor and/or surety between Contractor and supplier; or (iii) any other obligation or liability to the supplier or any other subcontractor from the Contractor other than as maker of the joint check. Contractor reserves the right to place a restrictive endorsement on any joint check reflecting any or all of the foregoing provisions. Notwithstanding the foregoing, nothing set forth herein shall obligate the Contractor to issue joint checks. This provision is solely intended to benefit and protect the Contractor, and nothing herein is intended to create a right to payment by any material supplier, materialmen or Subcontractor other than Subcontractor entering into this Agreement. 5. TAXES. The Contract price stated herein and in any Price Addendum includes any amount that the Subcontractor is obligated to pay for any and all taxes and/or fees in accordance with Federal, State, County, City and any municipal authority or amendements there to, or any law which now exists or which may hereafter adopted by Federal, State, 4
County, City and municipal authority which taxes and/or fees the materials, labor, services required, or labor furnished hereunder, and for any other tax levied by any reason of the work or materials to be performed hereunder. 6. CONTRACTOR. Where the word “Contractor” appears in the Contract Documents, Specifications and Drawings in connection with the work to be performed under this Subcontract, it is agreed that the party referred to is the General Contractor. 7. CONTRACTOR’S RIGHT TO TERMINATE. In addition to all rights of Contractor to terminate the Agreeement pursuant to Utah law, this Subcontractor Agreement shall be capable of termination by Contractor upon Contractor giving (10) days’ written notice to Subcontractor at the sole discretion of the Contractor, in the event that the Contractor shall be replaced or terminated as manager of Owner or if Contractor’s Agreement with Owner is terminated, or if for any reason the Contractor shall be unable or unwilling to undertake further construction of said project, all which shall be within the sole and absolute discretion of Contractor. 8. CANCELLATION. Contractor has the right to make the determination at its sole discretion to cancel or terminate this Subcontractor Agreement at any time during the term, hereof upon Contractor giving ten (10) days written notice to Subcontractor. The foregoing right to cancel or terminate this Subcontract Agreement shall include the right to issue and Order requiring the immediate cessation of work contemplated or describe hereunder. Should the Contractor elect to cancel or terminate this Subcontractor, or any part of portion thereof, or to order cessation of work hereunder, then the Contractor hereby agrees to pay Subcontractor, and Subcontractor agrees to accept, a pro-rated amount for the work done under this Subcontract by the Subcontractor, and further agrees that payment of such sums shall be in full and final settlement of all claims hereunder Contractor’s determination to elect to cancel or terminate this Subcontractor Agreement may be without cause and shall be final. 9. INTERRUPTION OF WORK
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If, as a result of fire, earthquake, Act of God, war, strikes, labor, dispute, picketing boycott, lockouts, reasonable adjustments in the work schedules, or any other causes beyond the control of Owner of Contractor, and either Owner of Contractor shall consider it inadvisable to proceed with the work hereunder, then Subcontractor shall upon receipt of written notice thereof from Contractor immediately discontinue any other work hereunder until such time as Contractor may deem it advisable to resume said work. Subcontractor shall resume the work hereunder following the giving of (10) days written notice from Contractor to resume the work, and Subcontractor shall not be entitled to any damage or compensation on account of the cessation of work, for any delay, or for any lost profit or business opportunity as a result of any of the aforesaid causes. 10. EXTRAS. It is understood and agreed by Subcontractor that all labor and materials to be furnished by the Subcontractor hereunder in order to provide the completed work contemplated herein, shall be deemed to be included within the contract price stated herein, notwithstanding the fact that the amount of labor and materials required to complete performance are not specifically called out in this Subcontractor Agreement, or the Plans or Specifications and the Contract documents. All labor and materials necessary to perform the completed work called for hereunder, shall be deemed to be included within the scope of labor and materials required for complete performance hereof, except with the respect to one singular exception thereto, and none other, to wit: that any additional labor and/or materials may be specifically authorized by Contractor, only in a writing executed by the Contractor, along with a definite statement in said written and executed authorization that said labor and/or materials shall be deemed to be an “EXTRA”, and shall be paid for in addition to the contract price at a sum specified in said authorization. For purposes of obtaining the foregoing written and executed authorization with respect to any “EXTRA” Subcontractor agrees that it may obtain proper written and executed authorization only from one of the persons specified herein as follows: ______________________________________________________________. For so long as the Subcontractor is obligated to perform under the terms of this Subcontractor Agreement, Contractor may at any time order deviations, additions, extras or changes, and the parties hereto acknowledge and agree that Contractor’s action in such regard shall not end this Subcontractor Agreement, nor shall it permit Subcontractor to terminate this Agreement. Subcontractor acknowledges and agrees that it shall be obligated hereunder to make such deviations, additions, or changes as ordered by the Contractor 6
and that Subcontractor shall be paid the value thereof as agreed upon in any written and executed authorization or change order between the Subcontractor and Contractor. 11. CHANGES Subcontractor acknowledges and agrees that it is Subcontractor’s responsibility to obtain all current sets of house plans, changes thereto, plot plans, architectural bulletins current plan/sequence information, Buyers’ Option Master List (B.O.M.L.) and specifications approved for construction prior to ordering materials and commencing the work called for hereunder. Subcontractor shall make no changes and shall be responsible for any deviation from the Plans and/or Specifications that he may make, and Subcontractor is required, to cause any work to conform strictly to the Plans and/or Specifications unless a written authorization of Contractor addressed to Subcontractor shall be given, setting forth in detail what changes shall be made. 12. TIME IS OF THE ESSENCE. Time is of the essence of this Subcontract. Subcontractor agrees to prepare to commence the work and shall order or obtain materials contemplated under this Subcontractor Agreement only to the extent and only as specified by Contractor upon the issuance and delivery by Contractor to Subcontractor of Purchase Orders. Subcontractors acknowledges and agrees that Contractor may issue Purchase orders for all of any portion of the work contemplated herein, in the sequence as called for and determined by Contractor in its sole discretion. Upon the issuance of such Purchase Orders, Subcontractor shall become fully prepared to commence work and shall thereafter commence work in accordance with instructions and upon receipt by Subcontractor of a Notification to Commence Work as specified in paragraph 16 therein below, and Subcontractor shall after receiving notification to commence work, thereafter proceed continuously and with reasonable diligence in strict accordance with Contractor’s time schedule and with any reasonable charge to said time schedule which may be made by Owner, Architect or Contractor. For purposes hereof, the Subcontractor specifically acknowledges and agrees that the Contractor’s “time schedule” constitutes Contractor’s written or verbal communication to Subcontractor and its superintendents, foreman and employees. Subcontractor shall cooperate in the performance of the work contemplated hereunder with Contractor and other Subcontractor’s and shall not interfere with the work of Contractor or other Subcontractor’s. Subcontractor shall provide, at its expense, 7
such additional shifts and/or overtime as Contractor may require in the event Contractor deems additional shifts and/or overtime necessary to meet the time schedule. Subcontractor specifically acknowledges and agrees that Contractor may require the Subcontractor to have more than one crew available to perform the work contemplated hereunder during the effective period of this Subcontractor Agreement, and Subcontractor shall perform in accordance with all reasonable demands from Contractor to increase the Subcontractor’s personnel and crews. Subcontractor agrees that it shall not purchase any materials or incur any labor costs or any other costs, expenses or consequential damages claimed or incurred by Subcontractor unless and until a Purchase Order to Subcontractor at its place of business or by Subcontractor picking up and singing a receipt for the Purchase Order(s) at Contractor’s place of business. For purposes of this Agreement, mailing of the Purchase Orders to Subcontractor shall be at the following address: _____________________________ (name) _____________________________ (address) Subcontractor shall have the right to refuse to perform in accordance with issued Purchase Orders by Contractor. Any such refusal is hereby acknowledged and agreed to constitute a material default by Subcontractor shall construct the work continuously and diligently thereafter in strict accordance with the Contractor’s time schedule and any reasonable modification of said time schedule by order of Contractor. Under all circumstances the Subcontractor shall progress and coordinate the work in accordance with the direction and order of, Contractor, and shall further cooperate so as to enable the Contractor to obtain the prompt and efficient completion of the general contract. Subcontractor shall cooperate with all related work under this Subcontract and in no manner shall interfere with the work or Contractor or any other Subcontractors. Subcontractor shall provide at its own expense such additional labor, including overtime, as Contractor may require or deem necessary in order to meet the construction time schedule. Subcontractor agrees to perform and complete the work specified herein within no more than a total of the following specified number or working days from _______________________________________________. The commencement date specified in the Notice to Subcontractor to Commence Work, and in accordance with the following schedule. 8
Notwithstanding the foregoing, Subcontractor also acknowledges and agrees that Subcontractor shall be obligated hereunder to perform and complete the work specified herein in accordance with Contractor’s accelerated schedule for model homes, if any, as may be attached hereto and made a part hereof , upon written request by Contractor to Subcontractor to proceed with the work specified herein in accordance with the foregoing accelerated schedule. The parties hereto acknowledge and agree that in the event the Subcontractor fails to complete the work or deliver its material in accordance with this Subcontractor Agreement within the agreed upon time, then the Contractor will sustain damage and loss for each and every day of such delay beyond the time for completion of the work or delivery of the material as defined and agreed upon by the parties in this Subcontractor Agreement. The parties further acknowledge and agree, that in the event this Subcontractor fails to perform and complete the work or deliver the material within the agreed upon time as specified in the Subcontractor Agreement, and in view of this difficulty of estimating the damages incurred by the Contractor, then the parties hereto agree that the Subcontractor shall pay to Contractor, for each and every calendar day of such delay beyond the time specified for completion of the work or the delivery of the material as defined herein, the sum of $500.00 per day, per home, which sum is hereby agreed upon by the parties to constitute a reasonable amount of damages incurred by the Contractor for such delay, and which damages are hereby fixed are determined by the parties to constitute liquidated damages and a reasonable estimation of the damages suffered by the Contractor by reason of the delay of the Subcontractor. The foregoing shall not be considered to be a penalty or punishment for delay, nor shall it be considered to constitute security for the purpose of securing timely performance by the Subcontractor. 17. FAILURE TO PERFORM. Upon notification from Contractor that Subcontractor’s performance hereunder is in any respect unsatisfactory or deficient, Subcontractor shall promptly furnish materials and the labor necessary to complete the work and rectify the unsatisfactory condition or the deficient condition as the case may be, within forty-eight (48) hours of notification from Contractor. For purposes hereof, Subcontractor acknowledges and agrees that Contractor shall be entitled to provide notice to Subcontractor in any manner set forth in Paragraph 32 hereof. In the event that Subcontractor does not complete the work and/or rectify the unsatisfactory condition or the deficient condition as the case may be, or in the event Subcontractor does provide materials 9
necessary to correct and rectify the defect or deficiency within fortyeight (48) hours after notice to Subcontractor, Subcontractor hereby authorizes Contractor, for purposes of completing this Subcontract, to terminate this Subcontractor Agreement and eject the Subcontractor, and to take possession of all materials, appliances, tools and equipment on the job site, as well as all materials in the course of preparation and in the course of construction, wheresoever located, and to go into the open market and secure materials and employ personnel necessary to complete said work at the expense of Subcontractor. The parties hereto agree that Contractor shall have the right, in its sole discretion, to choose the entity and persons to replace the Subcontractor, and Contractor’s determination and decision in that regard shall be final and conclusive between the parties. 18. GUARANTEE AND WARRANTY. Subcontractor hereby guarantees, covenants and warrants to Owner and Contractor that there are not and will not be any defects in materials or workmanship furnished pursuant to this Subcontractor Agreement. This express guarantee and Warranty shall extend to each house, resident or project which is the subject matter of this Subcontractor Agreement. The Guarantee and Warranty for each house/residence, included in the subject matter of the Subcontractor Agreement, shall commence as of the later of close of escrow of the date of Contractor’s new homeOrientation for owners of the house/residence. Subcontractor specifically acknowledges and agrees that the express Guarantee and Warranty given hereunder shall include all claims made by any owners of the residences and the respective Homeowner’s Associations. Subcontractor fully acknowledges and agrees that it shall participate and cooperate in any and all claims and pre-suit processes to resolve disputes or claims with respect to defective/deficient construction. Expect in cases of emergency, upon providing notification by the Contractor to Subcontractor, Subcontractor shall proceed with due diligence and dispatch at its own cost and expense to replace any defective material or perform any labor necessary to correct any defect in the work or materials as indicated in the notification to Subcontractor. Subcontractor shall correct such defective work and/or complete said work at its cost, within forty-eight (48) hours from notification from Contractor. In the event of any emergency, which may be determined to exist by Contractor within its sole discretion, Subcontractor shall immediately, at its own cost and expense, replace any defective material or perform any labor or work necessary to correct any defect in the work or materials which causes such emergency. Contractor’s determination of the existence of an emergency situation shall be final and conclusive. In the event that 10
the Subcontractor fails to correct any defective work and/or provide such materials in order to complete or remedy such deficiency within the time periods indicated hereinabove, the Contractor may, in addition to all other remedies set forth in the Subcontractor Agreement and as provided for by law, have the defective and/or incomplete work or materials replaced, corrected and/or incomplete work or materials replaced, corrected and/or completed and may, at the Subcontractor’s expense, furnish such materials or labor as are necessary to rectify the deficiency or defect, including the right to obtain a substitute subcontractor to provide such materials and/or labor at Subcontractor’s cost. Subcontractor hereby acknowledges the importance of Subcontractor timely completion and performing its obligations as set forth in this Subcontractor Agreement, including but not limited to Subcontractor’s obligation to promptly and diligently replace any defective material or perform any labor necessary to correct any defect in the work or materials within forty-eight (48) hours from the time of notification from Contractor. Failure to timely complete the work or to provide materials to correct any defect in the work or materials causes delay and additional administrative efforts and time to be incurred by Contractor, which delay and costs are acknowledged to exist by Subcontractor. Accordingly, in the event that the Subcontractor fails to timely perform any work or provide materials to correct any defect in the work or materials as indicated, in addition to all other rights and remedies of the Contractor as set forth herein and as may be provided for by law, Contractor reserves the right to impose a $250.00 Administrative Charge for Subcontractor’s failure to appear for any appointment which requires Subcontractor to correct such defective work or provide materials to effect correction of any defect in the work or materials. It is expressly agreed that the foregoing late charge for failure to keep or be present for any appointment is in addition to and not a substitute for the backcharges which Contractor has the right to charge as set forth in paragraph 31 herein below. 19. CLEANUP AND STORAGE. Subcontractor shall protect his own work and be responsible under all circumstances for the condition therefore until final acceptance of the entire project, and to protect adjacent property from injury arising out of his work, and to repair or replace any such damage or injury. The following will apply to protection of project:
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A.
Materials in or stored for the work shall at all times be protected or housed with particular care being taken to protect all finished parts.
B.
Subcontractor shall take adequate precautions to avoid damage, theft or other loss to Contractor and the premises and to the work of other trades. Any work which is damaged through negligence of Subcontractor shall be replaced at the expense of Subcontractor.
C.
No paint storage, toxic chemicals or flammable materials are to be stored on the job site.
D.
All discovered damage must be reported in writing to the superintendent prior to additional work being performed by Subcontractor. This reporting shall help prevent you from being held responsible for damage caused by others.
E.
All protective coverings on materials shall remain in place until final cleaning before occupancy, if possible.
F.
Subcontractor shall bear the risk and be responsible for the theft of all material, tools and equipment.
G.
The Subcontractor shall see to it that no service lines of any nature shall be out, disconnected or disturbed without permission from the authority having jurisdiction. Prior to any digging or trenching, it shall be the Subcontractor’s responsibility to contact the underground location service, obtain details of phone number and individual(s) to contact. Subcontractor shall be responsible for the costs of any service lines or utilities which are interfered with, cut, disconnected or disturbed.
21. INSURANCE AND INDEMNITY. Subcontractor shall fully and completely indemnify and save Owner and Contractor harmless against all claims for damages to persons or to property which are in any way connected with work performed under the Subcontractor Agreement, at Subcontractor’s sole cost and expense. Without limiting the generality of the foregoing, except to the extent that a claim arises out of the sole negligence or willful misconduct of Contractor or Owner, the foregoing obligation to indemnify and 12
hold harmless includes the duty to defend and indemnify Owner and Contractor for any and all claims which are or may in any way be connected with work, labor or materials performed or provided pursuant to the Subcontractor Agreement. In addition to the foregoing, Subcontractor shall procure and maintain, during the entire progress of the work, full an unlimited Workmen’s Compensation and Employer’s Liability Insurance. Subcontractor shall also obtain and maintain public general Liability insurance coverage, including course of construction insurance covering claims and liability for personal injury and property damage, in coverage limits which shall not be less than $1,000,000 per occurrence, and $2,000,000 general aggregate, which shall provide coverage for completed operations, products liability, and contractual liability. In addition to the foregoing, Subcontractor shall be named as an additional insured with respect to the foregoing coverage. The Subcontractor’s insurance carrier shall be required to be “A-” rated, or better. The insurance coverage must be of sufficient duration to cover liability related to any manifestation date or claim within the applicable statutes of limitations and/or statutes of repose. Subcontractor shall annually provide Contractor with a new and replacement Certificate of Insurance. Additionally, Subcontractor shall obtain and provide to Contractor, an additional insured endorsement, naming Contractor as an additional insured. All of the foregoing policies and endorsements shall provide that the insurance shall not be cancelled or reduced in coverage until thirty (30) days following written notice shall have been given to Contractor of such attempt at cancellation or reduction in coverage. 22. USE OF CONTRACTOR’S EQUIPMENT. The use of any of Contractor’s equipment, rigging blocking, hoist, or scaffolding by Subcontractor, given, loaned, or rented to Subcontractor by Contractor shall be with the distinct understanding and agreement that Subcontractor used said equipment, rigging, blocking, hoist, or scaffolding at his own risk, and takes the same “AS IS” and after Subcontractor has satisfied himself by examination as to the condition thereof, and Subcontractor does hereby assume all responsibility for and hold Contractor harmless from any claims or damages whatsoever resulting from the use of same, whether such damage or injuries result to his own employees or property, or to the employees or property of others. Nothing set forth herein, however, shall be construed to obligate the Contractor to provide any equipment, 13
rigging, blocking, tools, scaffolding or any other materials to facilitate the work which Subcontractor is obligated to perform hereunder. 23. COMPETENT EMPLOYEES. Subcontractor shall employ only competent, careful, orderly person upon their work and upon notification by Contractor that the conduct of any person employed b Subcontractor is unsatisfactory, immediately to remove such person from the work. All workmanship shall exceed accepted standards of the industry, and shall be of the best quality. 24. PERMITS, LAWS. Unless stipulated otherwise in any addendum, Subcontractor shall obtain at his expense all permits and licenses, to comply with all laws, rules, regulations, orders and requirements of the City, County, State and Federal governments and of any Board of Commission or other duty qualified body having jurisdiction, which shall or might affect or apply to the work. Subcontractor’s shall maintain its contractor’s license with the state of Utah as required by all statutes and regulations imposed by the Utah State Department of Commerce, Division of Occupational and Professional Licensing, if applicable. In the event that Subcontractor’s license is suspended or revoked, Subcontractor shall provide immediate written notification thereof to Contractor. 25. ASSIGNMENT. Subcontractor shall not assign or sublet any portion of the Subcontract, or any payments which may be claimed due hereunder, without first obtaining the prior and express written permission from Contractor. Notwithstanding the foregoing, and without limiting the foregoing prohibition against assignment or subletting, any assignment, transfer, or pledge of this Subcontract or any amounts claimed due thereunder, shall be subject to all provisions and convenants of the Subcontract. 26. LEINS, ETC. Subcontractor shall pay, when due, all claims for labor and/or materials and/or lower tiered subcontracts applied on/in or furnished hereunder, and shall take all steps necessary to prevent the filing of any lien of mechanics or materialmen, or the 14
filing or service of attachments, garnishments, or suits involving the property, improvements or this of the property upon which the improvements are erected or installed. Subcontractor further agrees within forty-eight (48) hours after written demand is addressed to it at the address herein contained, by United States mail, to cause and effect any lawsuit to be dismissed and lien to be removed and expunged from the premises, and in the event Subcontractor shall fail to do so, Contractor is authorized to use whatever means it may deem appropriate to cause said lien, attachment, or suit, together with its effect upon the title, to be removed, discharged, satisfied, compromised or dismissed, and the costs thereof, together with reasonable attorney’s fees, shall become immediately due Contractor. Contractor shall be specifically authorized to withhold from payment to Subcontractor, such amounts which in Contractor’s discretion it deems appropriate to protect Contractor and Owner from any lien or suit, including but not limited to, defense costs thereof and the cost to obtain and satisfy any bond which may be obtained for the release of said lien or suit. 27. ATTORNEY’S FEES. In any action, proceeding, or arbitration brought by Contractor or Owner to enforce the performance of this Subcontractor Agreement, Contractor and Owner shall be entitled to recover its/their actual attorney’s fees and costs of any action, proceeding or arbitration. This provision shall also be applicable to and enforceable again. Subcontractor in the event that the Subcontractor is joined in any action, suit or arbitration pertaining in any manner to the Subcontractor’s performance hereunder. In addition to the provisions of paragraph 8 herein above, in the event Subcontractor commits any act of insolvency or bankruptcy, this Subcontract may be terminated at the option of Contractor. Authority is hereby granted to any financial institution, materialman, or individual to disclose Subcontractor’s financial status, credit and manner c meeting its obligations. 28. CLAIMS FOR DELAY OR DAMAGES. Any provisions in this Agreement to the contrary notwithstanding, the Contractor shall not be liable to the Subcontractor for damaged for any delays caused by the Contractor, by the Owner, by other suppliers or Subcontractors employed on the project, or for any other cause whatsoever. 15
29. HEIRS AND ASSIGNS. This Subcontract shall inure to the benefit of, and be binding upon, the heirs, executors, administrators, and successors of the respective parties hereto, and the assigns of Contractor, if any. 30. BACKCHARGES. If Contractor incurs or sustains damages for the failure of Subcontractor to perform in accordance with this Subcontractor Agreement, Contractor shall also be entitled to charge an additional twenty-five percent (25%) of such damages for administrative and supervisory costs for handling matters related to Subcontractor’s breach. 31. NOTICE. Any notification which is required to be provided hereunder may be provided by either of the parties and shall be deemed sufficient by service of said notice in any manner as hereinafter set forth: (a) (b) (c) (d)
Personal service at the business address of the parties hereto; or Deposit of said written notice into the United States mail, postage prepaid, to the business address of the parties; or Telefaxed written notice to the Contractor or Subcontractor at its business telefax number, with confirmation thereof; or Verbal or telephonic notice.
32. DEFAULT AND TERMINATION. In addition to the provisions of Paragraph 8 hereinabove, should the Subcontractor fail to comply with any term hereof, or any obligation and covenant on its part to be performed under this Subcontract, or if Subcontractor fails, neglects or refuses to perform the work as, and/or when called for by the Contractor, then the Contractor shall have the right, after giving notice of such failure, deficiency or non-compliance by the Contractor to the Subcontractor as provided for in the immediately, preceding paragraph, to terminate this Subcontractor agreement effective forty-eight (48) hours following the giving of notice to 16
Subcontractor. Contractor shall thereafter be free to award the work which is the subject matter of the Subcontract to another Subcontractor, and the Contractor shall thereupon be relieved of any further obligation to the Subcontractor herein. Nothing contained in this Subcontractor Agreement or any amendment, supplement or addition hereto, including the cancellation or termination of this Contract under the provision hereof shall in any way relieve the Subcontractor from its responsibility and liability for all consequential damages incurred by Contractor by reason of said default and breach, and the responsibility for complying with the Subcontractor’s continuing warranties and guarantee as provided for hereinabove. Said warranties and guarantee shall survive the expiration or termination of the Contract. 33. NON-DISCRIMINATION IN EMPLOYMENT. During the terms of this subcontract, neither subcontractor nor any of it’s affiliates, employees or agents shall unlawfully discriminate against any employee of applicant for employment because of race, color, creed, age, religion, physical, or mental disability, medical condition, sex, sexual orientation, marital or family status, military service status, citizenship, ancestry, or national origin, or on the basis of any other discriminatory and prohibited classification. Subcontractor and its affiliates, employees and agents shall assure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. 34. ARBITRATION EXCLUSIVE REMEDY. In the event of a dispute between the parties, or a claim by one of both of the parties which relates to this Subcontractor Agreement, or the covenants, terms and performance hereunder, each of the parties hereto agrees to submit such dispute and their respective claims to binding Arbitration. Arbitration shall be deemed to be the exclusive remedy to be utilized by the parties to this Agreement. Arbitration of any dispute or claim which arises under this Agreement may be instituted by any party hereto by serving the other party with written notice of its desire to arbitrate the dispute. Said written notice shall specify with particularity the nature of the dispute and the claims being made by the party demanding arbitration. Within thirty (30) days following the date of service of said written notification/demand to institute 17
arbitration, the other party shall signify its acknowledgment of the request/demand to arbitrate, and the parties shall thereafter select an arbitrator for purposes of hearing the dispute. In the event that any party fails to signify its acknowledgment and agreement to arbitrate, or in the event said party refuses to arbitrate, then this Agreement to arbitrate may be specifically enforced by any Court of competent jurisdiction in accordance with the provisions of the Utah Code. This Subcontractor Agreement and all of the terms, provisions, and addendums thereto shall be construed under the laws of the State of Utah. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year written below.
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