TERMS AND CONDITIONS:
PAYMENT: Subcontractor shall not be entitled to receive any progress payment under this Subcontract until the Subcontractor shall submit to Contractor the Subcontractor Invoice issued with the executed contract so that Contractor is able to apply to the Owner for payment on the basis of the Subcontractor’s work.. All Subcontractor Invoices and backup forms submitted on a form other than the correct document will be returned for proper submission on the following billing cycle.
INVOICING: Subcontractor invoices will be mailed certified to 200 E. Main St. #500 Johnson City TN 33604. E-mailed to firstname.lastname@example.org or faxed to (928) 395-1429. Subcontractor shall not be entitled to receive any progress payment here under until the subcontractor finishes 50% of the total job, substantially done to the contractor’s preliminary qualitative satisfaction, with remaining payments to be made at 25% intervals. Subcontractor’s payment will accordingly be withheld if subcontractor’s payment has any outstanding unresolved work deficiencies from contractor or owner.
RETAINAGE: will be equal to 25% of each subcontractor draw/payment, may be retained by the contractor and remitted in full upon contractor’s receipt of final payment by owner.
SITE VISITATION: The Subcontractor acknowledges that it has visited the Project site and visually inspected the general and local conditions which could affect the Subcontract work. Any failure of the subcontractor to reasonably ascertain from a visual inspection of the site, the general and local conditions which could affect the Subcontract work, will not relieve the Subcontractor from its responsibility to properly complete the subcontract work without additional expense to the contractor.
CLEAN-UP: The subcontractor shall follow the Contractor’s cleanup directions as well as those with regard to the temporary storage of chemicals and equipment, expired sealant, paint, et cetera.
SEVERABILITY AND WAIVER: The partial or complete invalidity of any one or more provisions of this Subcontract shall not affect the validity or continuing force and effect of any other provisions. The failure of either party thereto to insist, in any one of more instances, upon the performance of any of the terms, covenants or conditions of this subcontract, or to exercising right therein, shall not be construed as a waiver or relinquishment of such terms, covenants, condition or right as respects further performance.
PARTIAL LIEN AND AFFIDAVITS: As a prerequisite for payment, the Subcontractor shall provide in a form satisfactory to the Owner and Contractor partial lien waivers in the amount of the application for payment and affidavits from the Subcontractor and his material men and supplies for the completed Subcontract work. Such waivers may be conditional upon payment.
CONTRACTED DEADLINES: Time is of the essence, and all of the work of the Subcontractor shall fully and properly be completed within the time required by the subcontract or shorter period of time as Contractor shall schedule or deem necessary so as to permit Contractor to complete and fulfill timely all of its obligations in the Prime Contract. Subcontractor represents that it has the machinery, equipment, personnel, and experience to perform the work contracted herein in the allotted time frame. Subcontractor accepts sole and exclusive responsibility for the work covered hereby, shall provide continuous supervision for such work during the progress thereof at the job site, and no advice, recommendations or assistance that the Owner or Contractor may give to Subcontractor shall operate or relieve Subcontractor from complete responsibility from such work. Subcontractor acknowledges the responsibility of the time limitation set for completion herein; that the Subcontractor’s failure to timely complete the specified work will cause Contractor damages that are difficult or impossible to precisely determine and the parties thus agree to liquidated damages in the amount of TWO HUNDRED DOLLARS ($200.00) per day for each day the contracted scope of work remains uncompleted beyond the time limits of this agreement. Subcontractor acknowledges that although no specific work hours are applicable herein, and that subcontractor may use his discretion as to the manner said work is executed, NONETHELESS it is understood that the FIRST day of commencement is CRITICAL to subcontractor’s performance and in the event that Subcontractor fails to timely commence, the parties agree to liquidated damages in the amount of TWO HUNDRED DOLLARS ($200.00) assessed upon first draw. In the event that the contracted scopes are not completed by the pertaining due date, retainage for that scope will be used as compensation to the contractor for scope completion and liquidated damages.
COMMUNICATION: Subcontractor agrees to be accessible to Contractor’s communications, and will thus be responsible for possessing a functional cell phone at all times.
INSURANCE: Subcontractor agrees to maintain general liability insurance in an amount of no less than ONE MILLION DOLLARS ($1,000,000.00) per incident, and the applicable insurance certificate must name Glass and Concrete Contracting or Sean Williams as additional insured with respect to this project. 30% of the total contracted price will be deducted from all uninsured Subcontractor invoices for compensation of the exposure to the Contractors Liability and Workers Compensation Insurance Policies.
ATTORNEY’S FEES AND COSTS: In the event Contractor employs attorneys or incurs other expenses it may deem necessary to protect or enforce its rights under this Subcontract (or in connection with any work done or agreed to be done by Subcontractor on this construction Project) or to collect damages for the breach of the Subcontract, or to recover on the surety bond given by Subcontractor under this Subcontract, Subcontractor and the surety, if any, on its bond, jointly and severally agree to pay the attorney’s fees and expenses so incurred by Contractor. All references in the Subcontract to Subcontractor paying costs, charges or expenses incurred by Contractor, such costs, charges or expenses shall include, but are not limited to, attorney’s fee incurred by Contractor.
COMPLIANCE WITH STATUTES AND LAWS: Subcontractor shall comply with, and abide by all federal, state, county and municipal laws, ordinances, regulations and all Prime Contract orders and directives applicable to the work, and the maintenance, preservation and inspection of pertaining thereto. Subcontractor agrees to protect, defend, indemnify and hold Contractor harmless with respect to all such laws, orders and directives.
FALL PROTECTION: Pursuant to the new 1926 OSHA-Subpart M for fall protection which became effective on February 6th 1995, Glass and Concrete Contracting strongly advises all crafts working above 6 feet to review the performance of their work in accordance with the above standard, to plan accordingly, to enact, to establish, or to construct the proper fall protection system necessary for your scope of work. This planning should take place prior to the beginning of work. If you are not familiar with Subpart M of the 1926 standards contact the Project Manager for assistance. This standard involves several aspects of employee training that are imperative to your business.
LABOR DISPUTES: In the event of a strike or work stoppage resulting from a dispute involving or affecting the labor employed by the Subcontractor or its Subcontractors, Contractor may, at its option, terminate this agreement and Contractor, in such event shall be obligated only to compensate Subcontractor on the basis of a termination for default.
TERMS OF CONTRACT PERTAINING TO CONTRACTORS EQUIPMENT: Any and all equipment provided by the Contractor for use on the pertaining contract, is provided in an effort to minimize costs to the Subcontractor and simplify overall operations. The equipment supplied becomes the Subcontractor’s responsibility until the pertaining completion date. In the event that equipment or supplies are stolen, damaged, or lost, reimbursement to replace may be taken out of the final payment. In the event that final payment has been made and deposit is inadequate civil and/or criminal charges may be filed at the expense of the Subcontractor. The equipment and supplies which are needed but not provided by the Contractor are the Subcontractor’s responsibility to provide, in accordance with the specifications set by the Contractor/Owner and Contractor/Subcontractor contract.
DELAY: Should Subcontractor be delayed in the performance of its work, Subcontractor shall be entitled only to an extension of time for performing and completing the work covered by this Subcontract limited to the extent actually allowed to Contractor by the Owner under the terms of the Prime Contract. Subcontractor shall indemnify, defend, protect and save harmless Contractor from all loss, cost, damage, liability and expense which Contractor may sustain or incur by reason of any delays caused or contributed to by the Subcontractor, its agents, representatives or Subcontractors, including but not limited to any attorney’s fees incurred by Contractor. Payment of such amounts by Subcontractor for any such delay shall not relieve or release the Subcontractor from any obligation from hereunder, and shall not affect any other cause of action which Contractor otherwise would have against the Subcontractor for the same or any other breach. Any damages to Contractor for any such delays may be deducted by Contractor at its option from the agreed price for Subcontractor’s work, as damages and not as a penalty, without limiting any rights of Contractor including the option of Contractor to terminate this Subcontract for default.
Contractor shall not be liable in damages to the Subcontractor for delay to Subcontractor’s work for any reason. Notwithstanding anything else contained herein, the liability of Contractor to the Subcontractor for damages the Subcontractor incurs as a result of any acts, or failures to act, by the Owner or others which delay or suspend the Subcontractor’s work is limited expressly and solely to the amount the Owner or others actually pay Contractor for such damages, if any. The only obligation has to Subcontractor under this provision is to pass on to the Owner or such others any claim Subcontractor has for damages or delay caused by Owners or others. Even if otherwise permissible under the Prime Contract or this Subcontract, no claim for an extension of time or damages shall be allowed to the Subcontractor for any cause or under any circumstances unless the Subcontractor files a written claim with Contractor therefor within 24 hours form the time of the beginning of the occurrence causing the delay or allegedly resulting in damages.
Contractor may, at any time, without notice to Subcontractor’s surety and without invalidating this Subcontract, make any changes or alterations in the work covered by this Subcontract or order extra or additional work which it may deem expedient, whether the same increases or diminishes the work to be done hereunder, but no alteration or change or extra or additional work, shall be performed by the Subcontractor except upon the written order of the Contractor. If no additional time or money is requested in writing, by Subcontractor within five (5) days following any notice of a proposed change or extra work or additional work, it shall be construed that there is no additional price or extension of time to be allowed.
In the event that the Contractor directs Subcontractor to perform extra or additional work, Subcontractor agrees that it will promptly perform and diligently complete such work whether or not Contractor and Subcontractor have agreed on the cost of such work. Subcontractor shall submit to Contractor a lump sum proposal for such work, which proposal shall include a detailed cost breakdown for each component of the work, indicating both quantities and unit prices, and such proposal shall be submitted to Contractor not later the five (5) days after such proposal is requested by contractor. If a lump sum price or unit price for the extra work cannot be agreed upon, Subcontractor agrees to do the work on the basis of its actual cost plus allowable percentage fees for overhead and profit. The contractor shall not be liable for payment for any extra work performed by the Subcontractor unless such work is first expressly authorized by the Contractor’s Project Manager in writing.
DEVEIATIONS AND CHANGES: A written Change Order or Purchase Order MUST be issued by the Contractor’s Project Manager prior to submitting pay applications for additional work. Any application for additional work without prior written authorization will not be approved and the amount due will be reduced accordingly or the application returned for correction.
With respect to such changes, or alterations, or additional or extra work, Contractor shall not be liable to the Subcontractor for a greater sum than Contractor obtains from the Owner for such changes, alterations or extra additional work, less reasonable overhead and profit to Contractor, and also less any costs and expenses incurred by Contractor or other Subcontractors, and also less any costs and expenses incurred by Contractor in the collection of any such sum of money. Any payments to Subcontractor for such work shall be conditioned upon a prior recovery thereof in receipt of payment thereon by Contractor by the Owner. In the event of a deduction as a result of such change in the work, the deduction taken by the Owner shall be controlling and binding upon the Subcontractor and Subcontractor shall be back charged in an amount sufficient in Contractor’s discretion to offset the deduction from the Owner. If there is a dispute as to such changes, alterations or extra additional work, then the Subcontractor shall proceed with such work as directed by Contractor and such dispute shall be settled as provided for in the Prime Contract.
If the Subcontractor deems that surfaces or work to which it’s work is to be applied or affixed are unsatisfactory or unsuitable or differ from any representation thereof or from good construction practice, written notification of the condition shall be given to Contractor before Subcontractor proceeds with further work in connection therewith or takes any remedial action with respect to such condition. If Subcontractor fails to give such written notice or fails to receive from Contractor a response allowing Subcontractor consideration in connection therewith, no consideration or compensation will be given or allowed to Subcontractor with respect thereto if any work is commenced by Subcontractor.
GUARANTEES: Subcontractor shall perform Contractor’s guarantee to the Owner under the Prime Contract with respect to the subject matter of the Subcontract for the period of time required by and in the manner and to the extent as Contractor’s guarantee to Owner under the Prime Contract. Subcontractor unconditionally warrants and guarantees all labor, material and services employed and furnished by or to it in performing the work and agrees at Subcontractor’s expense promptly to amend and make good, upon demand, any and all defects to the entire approval and acceptance of Contractor, Owner and Architect. Subcontractor shall replace and repair all other parts of the Project and of the contents thereof which may have been damaged or removed as the result of Subcontractor performing its obligations under this paragraph and to effect such replacement, all at Subcontractor’s own cost and expense and to the satisfaction of the Owner, Architect, and Contractor. Subcontractor shall be responsible for one year from the date the project is accepted by the Owner. Should the Subcontractor refuse or neglect to proceed within twenty-four (24) hours of notice with respect to the correction of rejected or defective materials or workmanship, or warranty requirements of the Prime Contract or of this agreement, the Contractor shall have the right and power to have the defects remedied or changes made at the expense of Subcontractor, and either deduct such amounts from sums otherwise due Subcontractor or Subcontractor agrees to pay Contractor, on demand, any and all loss and expense paid or incurred by Contractor in remedying such defects or making such changes, or performing such warranty work, Contractor’s markup to cover supervision, insurance, overhead and profit together with interest on said total sum at the rate of one and one half (1½) percent above the prime rate from the time the work is commenced until paid. The obligations of Subcontractor herein to so correct and remedy shall also extend to all portions of the work which the Architect shall condemn as unsound or improper or as failing to conform in any way to the Prime Contract. Subcontractor further agrees to perform (and to protect Contractor from any liability on) Contractor’s guarantees and undertakings to the Owner under and in the Prime Contract insofar as the same pertain to the work covered by this Subcontract. If in the option of Contractor, it would be inexpedient to correct or remedy all or any part of the worker materials so rejected or condemned, then Contractor, at its option and without prejudice to any other remedies hereunder, may deduct from the payments due or to become due to Subcontractor (or may charge and collect from Subcontractor if Subcontractor has already received payment) such amount or amounts as in the Contractor’s judgment will represent the difference between the fair value of the work and materials so rejected or condemned and the value thereof, if the same had complied with the Prime Contract. The obligations set forth in this paragraph are continuing and shall survive completion of the construction project, acceptance of work, and making final payment to Subcontractor. In the event Subcontractor refuses to perform any repairs or replacement and contends that such work, which Contractor maintains is not in compliance with the Prime Contract or is otherwise defective, is not covered by this obligation to repair or replace, then Contractor will make the determination and such determination shall be final, conclusive and binding on Subcontractor.
INDEMNITY AND INSURANCE: Subcontractor agrees to protect, defend and hold harmless Contractor and Owner from and against (i) all claims, causes of action, liabilities, obligations, demands, costs and expenses arising out of injury to (including death of) any and all persons or damaged property alleged to have been caused or contributed to by any act or omission of Subcontractor, it’s agents, employees, Subcontractors, laborers, suppliers or invites, or growing out or incidental, directly or indirectly, to the performance of the Subcontract regardless of how such injury, death or damage be caused, and (ii) all damage, judgments and expenses (including but not limited to attorney’s fees) caused by any act or omission (whether or not negligent) of Subcontractor or anyone who performs work or services in the prosecution of the Subcontract. Subcontractor expressly assumes with respect to the work to be done hereunder all the liability imposed on Contractor by the provisions of the Prime Contract and Subcontractor shall defend by and through council acceptable to Contractor any and all suits brought against Contractor or Owner on account of any such liability or any claims of liability and shall pay any settlements made or judgments rendered with respect thereto, and shall reimburse and indemnify Contractor for all expenditures or expenses, including court costs and attorney’s fees made, sustained or incurred by Contractor by reason of any such accident, obligations, demands, liability or claims of liability. If there are such injuries to person or damage to property unsettled upon completion of the Subcontract, final settlement of sums otherwise due between Contractor and Subcontractor may be deferred at the option of Contractor until such claims are adjusted or suitable indemnity acceptable to Contractor is furnished to Contractor by the Subcontractor. Subcontractor agrees that the damages provisions of, and any damages assessed in relation to, the Prime Contract, both actually and liquidated, shall be enforceable and collectable by Contractor against Subcontractor. In addition, Contractor, at his sole election, may set off from sums otherwise due Subcontractor an amount equal to said damages including any damages sustained by Contractor as a result of the failure of Subcontractor to perform it’s work properly, timely or in accordance with its obligations and requirements hereunder or under any other Subcontracts with Contractor.
Contractor may (but is not obligated to) carry Builders’ Risk Insurance on the construction Project. Should Contractor carry this insurance then Contractor at its sole option may include the Subcontractor for the principal sum of the Subcontract in Contractor’s Builders’ Risk Policy, and if it does so include the Subcontractor, then the Subcontractor will pay to Contractor the Subcontractor’s fair share of the premium thereof as determined by Contractor. Contractor shall not be deemed to have elected or agreed to include the Subcontractor in any such policy until and unless the Subcontractor has been named on the policy and been furnished an endorsement or certificate to that effect and the Subcontractor has paid Contractor therefor. Subcontractor shall assume the responsibility to determine whether this insurance is in force.
SAFETY AND PROTECTION: Subcontractor agrees, at its own expense, to carefully protect, watch over, and care for all its work, complete or otherwise, and all of its materials, supplies, tools and equipment. Subcontractor agrees at its own expense to make good any loss or damage to any or all such work, materials, supplies, tools and equipment from any cause whatsoever up to the final acceptance of the entire project by the Owner.
Subcontractor assumes exclusive responsibility for protection of its personnel, materials, equipment, facilities and work. If Contractor shall maintain first aid service at the site of said Project, Subcontractor shall bear its fair share of Contractor’s estimate of the cost thereof. Subcontractor shall provide sufficient, safe and proper facilities at all time for inspection by Contractor and the Architect of the work and materials of the Subcontractor, whether in the field, at shops, or at any place where such materials may be in preparation, manufacture, storage or installation. Shit. Subcontractor agrees to abide by all safety rules, practices and programs as established by the Prime Contract, Owner and Contractor and the Occupational Safety and Health Act of 1970, as amended, OSHA revised safety standards for fall protection systems and procedures dated February 6th 1995 and all other applicable safety rules and regulations whether state, federal, or local (collectively referred to as the “Act”) and shall be exclusively liable for the safety of its employees and for any violations of the Act, the Contractor is not and shall not be responsible therefor. Subcontractor is responsible for taking all necessary measures to protect pedestrians, traffic and adjacent structures from harm, which might result from subcontractor’s performance of the work. Subcontractor agrees that all cranes, derricks, and other hoisting devices used on his project will be inspected prior to use by an independent firm with a copy of their report submitted to Contractor.
TERMINATION AND DEFAULT: Contractor shall, at its sole option and discretion have the right to terminate this subcontract for any reason whatsoever by providing the Subcontractor with a notice of termination to be effective upon the fifth day following the Contractor’s mailing of the notice to Subcontractor by registered mail, return receipt requested. A termination shall, if wrongful made, be treated as a termination for convenience under this paragraph. Whenever the subcontract is terminated for convenience under this paragraph or if it is later determined to have wrongfully terminated, then in the Contractor’s sole discretion the Subcontractor only be entitled to either (i) the actual, direct costs of all labor performed and material expended in accordance herewith on the job prior to the effective date of the termination plus a sum equal to five (5) percent of all such labor and material to cover overhead and profit, or entitled to be paid (ii) the amount that the owner has paid Contractor for the work performed by the Subcontractor up to the time of termination, whichever is less. In no event shall the Subcontractor be entitled (a) to anticipatory profit or damages for any termination; (b) to assert a claim in quantum merit or any other measure of damages other than that stated herein; and (c) to receive a sum in excess of what the Owner pays to Contractor for such work of Subcontractor up to the date of termination.
OSHA INSPECTIONS: In the event of an OSHA inspection, Glass and Concrete Contracting’s policy does not require a warrant to enter the project site. Since 1994 the Contractor, in most instances, has been viewed as the responsibility party on the project site, as far as OSHA is concerned. This theory is applied under the multi-employer work site ruling, which means we can be fined for hazards that are created by Subcontractors even though we physically do not have employees exposed to the hazard. Therefore, we find it necessary to inform Subcontractors that if any violations are found during an OSHA inspection in which Glass and Concrete Contracting is cited under the multi-employer work site ruling, we will seek financial restitution against the Subcontractor. If cooperation is received from all Subcontractors during the process of the job, then only minor citations should be found during an inspection by OSHA. Glass and Concrete Contracting has a Safety Department that any Subcontractor can contact at their convenience for assistance. The advice given by our Safety Department is as we interpret the standards or as we view loss control issues; nevertheless we can provide a service that might avoid employee injuries and does not cost your company money. Please take advantage of it.
TAXES AND PERMITS: All taxes applicable are included in the price to be paid Subcontractor under this Subcontract, the Subcontractor assumes, accepts exclusive liability for, and agrees to pay (a) all taxes, contributions, interest and penalties under any federal, state, municipal or other government or private old age benefit, welfare benefit, social security, pension, annuity, or unemployment compensation or insurance law, plan or program now existing or hereafter imposed, (b) all taxes and contributions required to be withheld from or in respect of wages and salaries, under any law now existing or hereafter imposed, including interest, and penalties (c) all taxes measured by receipts in connection with the work under this Subcontract and all sales, use, income, occupation, or excise taxes, including interest and penalties, referable to this Subcontract or anything to be done or furnished hereunder and all permits, fees and licenses relative to the work covered by this Subcontract. If Contractor pays any such taxes, contributions, interest or penalties, Subcontractor on demand shall reimburse Contractor or Contractor may deduct the same from the sums otherwise due Subcontractor.
SET-OFFS: In the event that any monies are owed to Contractor by Subcontractor as a result of any other agreement or work performed or materials supplied upon any other construction project, Contractor may set-off any such amounts due from any payment to be made pursuant to this agreement and Subcontractor consents to any such set-off.
MISC.: Subcontractor agrees that 24 hours written notice (unless expressly otherwise provided herein) of any action Contractor proposed to take hereunder shall be sufficient. Written notice shall be deemed to have been dully served upon Subcontractor, via. facsimile, or certified mail and when delivered to or at the last known business address of Subcontractor or when enclosed in a postage pre-paid wrapper or envelope addressed to Subcontractor at Subcontractor’s principal office or to any branch office Subcontractor may have in the place where the work under construction is located and deposited in a United States mailbox. Any legal or other formal notice required to be given, or desired to be given by the Subcontractor to Contractor shall be valid only when received by Contractor at its office in Johnson City, TN.
If the Subcontractor makes use of Contractor’s available hoisting facilities such as cranes, lifts, hoists, scaffolds, or any other equipment it does so at its own risk without any guarantee or warranty. It is to be understood that if this service is utilized it will not necessarily be on an uninterrupted basis but on a coordinated basis with the requirements of the Project.
Subcontractor must notify Glass and Concrete Contracting of any changes in said work before proceeding with same. Failure to do so will be at Subcontractor’s own risk.
The Subcontractor furthermore understands and agrees that it shall not deal directly with the representatives of the Owner, but shall handle all matters connected with this contract, the work, or the furnishing of the materials or payment therefore, exclusively through the Contractor, unless otherwise directed in writing by the Contractor.
MOCKUPS: Any reference of work to be performed by Contractor in the specifications or on the plans pertaining to Subcontractor’s scope of work shall be completed by Subcontractor.
Subcontractor agrees to maintain general liability insurance in an amount of no less than ONE MILLION DOLLARS ($1,000,000.00) per incident, and the applicable insurance certificate must name Glass and Concrete Contracting or Sean Williams as additional insured with respect to this project. 30% of the total contracted price will be deducted from all uninsured Subcontractor invoices for compensation of the exposure to the Contractors Liability and Workers Compensation Insurance Policies.