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Claim Pospisil Painting re: GRC AlTORNEYS AT LAW /0/ ~/Ó%i ~/(tf a,þt Þ ~~~ MOYER & BERGMAN, P.L.C. ROBERT E KONCHAR STEPHEN C. NELSON J. SCOOT BOGGUSS LARRY G. GUTZ' PHILIP D. BROOKS J. MICHAEL WESTON KEVIN J. VISSER RANDAU SCHOLER WILLIAM S. VERNON JAMES P CRAIG ERICWLAM MICHAEL McDONOUGH' MARKJ. HERZBERGER BRENDAK WALLRICHS COMMERCE EXCHANGE BUILDING 2720 FIRST AVENUE NE CEDAR RAPIDS, IOWA 52402 TELEPHONE (319) 366.7331 FACSIMILE (319) 366.3668 CYNTHIA A. SCHERRMAN SUEPPEL NICOLE L. CLAUSSEN MARCIA V HARRIS' BRIANJFAGAN MARKJ. PARMENTER AMANDA M. JOHNSON SASHA L KIRK MAILING ADDRESS; P.O. BOX 1943 CEDAR RAPIDS, IOWA 52406.1943 LARRY D. HELVEY MD. COUNSEL www.moyerbergman.com WILLIAM A BERGMAN. "TIRCO October 5, 2004 City Clerk City Hall 50 West 13th Street Dubuque, IA 52001 Writer's E.Mail Addres" bvemon@moyerbergman.com RE: Claim for Material and Labor - Mississippi River Education and Conference Center, Dubuque, Iowa Dear Clerk: Regarding the above-captioned project, this firm represents Pospisil Painting, Inc, concerning collection of the past due amount of$86,783,78. Pursuant to the Iowa Code, an original and one copy of a Claim for Material and Labor are enclosed. Please acknowledge receipt by returning the enclosed copy with page 2 completed in the enclosed envelope, If you have any questions, please call. Very truly yours, MOYER & BERGMAN, P,LC, ()J.llf r1 t{{ J ~~ " ' ,.P- Wilham S. Vernon W~Y:latC Enclosures F;IWPICRMlwsvlPospisil PaintinglL TR City Clerk.doc . ALSO LICENSED TO PRACTICE IN; 'WISCONSIN 'NEBRASKA 'MINNESOTA <ILLINOIS AND WASHINGTON 'LICENSED TO PRACTICE ONLYIN MINNESOTA AND WISCONSIN MOYER & BERGMAN, P.L.C. October 5,2004 Page 2 cc: CliffMohling Pospisil Painting, Inc. 728 - 58 Avenue Court SW Cedar Rapids, IA 52404 Mark A. Cullen, President J. p, Cullen & Sons, Inc. 330 E. Delavan Drive P. O. Box 1957 Janesville, WI 53547-1957 CLAIM FOR MATERIAL AND LABOR Chapter 573 Claim STATE OF IOWA) ) ss, COUNTY OF LINN ) Being first duly sworn, I depose and state: NAME OF BOARD: City of Dubuque SUBCONTRACTOR: Pospisil Painting, Inc. 728 - 58 Avenue Court SW Cedar Rapids, IA 52404 CONTRACT DESCRIPTION: See attached Exhibit "A" Pospisil Painting, Inc., subcontractor to J. P. Cullen & Sons, for the Mississippi River Education and Conference Center located in Dubuque, Iowa (the "Project"), performed the work and provided the material as noted on the attached Exhibit "B" and has an unpaid contract amount due as of October 1, 2004 in the amount of$86,783.78, Pursuant to Chapter 573, this claim is being filed as a claim against the retainage and/or bond per the Project. The general contractor was notified within 30 days after materials were furnished and itemized invoices have been rendered to the general contractor describing the amount, kind and value of materials used in the Project. Claim is also made for interest and attorney fees as provided by law. Further affiant sayeth not. Pospisil Painting, Inc, ~lli!t It;: c/ It-- Moyer & Bergman, P.L.C. 2720 First Avenue NE P. 0, Box 1943 Cedar Rapids, IA 52406-1943 Telephone: (319) 366-7331 Fax: (319) 366-3668 C) Attorney for Pospisil Painting, Inc. Subscribed and sworn to before me on this fMday of ¿)tH"--^---' William S, Vernon. ,2004 by ,,~~\~,' '.- COlLEEN R. MORW"" ,7 COMMISSION NC' J7 'J.'i 1W00000000ION ExPIRES ;,. ~,It/, 1 I{"!?"l;! tt t~" I "- Notary Public in and for the State of Iowa The undersigned has duly endorsed this claim as being validly filed with , an appropriate officer and/or authorized representative of the City of Dubuque, and that said claim was filed on , 2004, at - o'clock _,M, (Officer's official signature) Name Title Address Phone F;I WPICRMlwsvlPospisil PaintinglClaim for Material and Labor.doc 2 -"';ì " Htv tJ r ..",.) . CUl.:é.SUBCONTRACT 'iflWlm ' 3'2001' 0 ~"i~EN & Sims. Ii:: JPC Job #4772 This agreement is effective as of this 22nd day of Oftober 2002 by and between the Contractor and the Subcontractor: S#990 Definitions Contractor J.P. Cullen & Sons, Inc. P.O. Box 1957 Janesville, WI 53547-1957 F.E.LN.39-1367756 Phone: 608.754.6601 FAX: 608.754.9171 Subcontractor Cliff Mohling Pospisil Painting, Inc. 728 58th Avenue Court S.W. Cedar Rapids, IA 52404 Phone: 319.362.4356 FAX: 319.362.6822 Project: Mississippi River National Education & Conference Center BP #3 General Construction Package, Dubuque, IA Owner: City of Dubuque, Iowa Ãrchitect: HOK Venue, St. Louis, MO Contract: The Contractor and Owner entered into a contract on September 5,2002 to construct the Project. Subcontract Documents: Consist of this Subcontract, the Contract (including General, Supplementary, and other Conditions), the Plans and Specifications dated July 15, 2002 prepared for the Project by the Architect or others, all Addenda issued prior to execution of the Contract (Le. Addenda #1 dated 07/26/02; #2 dated 08/09/02; #3 dated 08/15/02), and all Modifications issued subsequent thereto. Subcontract Work: Furnish and install per plans and specifications the following section(s): Section 09215 - Gypsum Veneer Plaster Section 09810 - Ferrous Metal Special Coatings Section 09910 - Painting Contract includes Alternates 1, 2, 3, 4, 5, 6, 7, and 8. Provide own dumpsters as required. Delivery or Start Date: 04/2003 or per project schedule Completion Date: 08/01/03 - Date for Shop Dwg.lSamples: 12/15/02 Date for Mat'!. List/CatCuts: 12/15/02 II-r-I Subcontract Price: Insurance Limits and Additional Insureds: Other Terms and Conditions: A pre-installation conference, to be scheduled by the Contractor, is required before beginning work at the job-site. Attendance by the Subcontractor's projeçt manager and job-site foreman is mandatory, A punch list scheduling conference will be established by the Contractor. Attendance by the Subcontractor's project manager and job-site foreman is mandatory. TWO HUNDRED SIXTY THOUSAND & NO/100 DOLLARS --- {$260,OOO.OO),6.0% Iowa/Dubuque County Sales Tax Included. The insurance coverages and limits required of the Subcontractor and the Additional Insureds to be named are specified on the sample Certificate of Insurance (Exhibit A) attached. Subcontractor must provide Certificates of Insurance prior to commencement ofthe Subcontract Work, and Contractor will not pay Subcontractor without a proper Certificate of Insurance on file. 1. Subcontractor is to provide its workers with hard hats, which shall be worn at all times. If Subcontractor's workers do not have hard hats, Contractor will provide them at $25.00 each. Contractor will deduct the cost through a deductive change order to the Subcontract Price. Once issued to Subcontractor's workers, hard hats cannot be returned to Contractor for credit O&M Manuals and written guarantees must be submitted prior to 50% payment. All shop drawings must be submitted within thirty (30) days of order unless specific date noted otherwise. TOBACCO FREE project. No radios except for two-way voice communication. All punch lists must be completed in ten (10) working days or progress payments will be withheld until satisfactorily completed. The subcontractor's attention is specifically drawn to Article 13.3.3 - regarding Liquidated Damages. Article 14.2.4 is modified to 5% retainage. Note cleanup requirements in Article 9.13. 2. 3. 4. 5. 6. 7. 8. 9. This Agreement, herein sometimes referred to as the "Subcontract" includes the following 15 pages (Articles) which are incorporated herein by reference. I n witness whereof this agreement is entered into as! of the date first written above. J.P. Cullen & Sons, Inc. By: ~-~ I By: Printed Name: Mark A. Cullen Title: President Title: '"f'r-C'o;:,i c\exd- F.E.LN. 4Z-WGOI8/ F,E.I.N. is Federal Employer Identification Number Each person signing this agreement for either party warrants that (s)he is duly authorized to do so and all consents have been obtained to make this Subcontract legally binding. TABLE OF ARTICLES 1. 2. 3. 4. 5. 6. 7. 8, 9. 10, 11, 12. 13, 14, 15. 16. 17, DEFINITION OF SUBCONTRACT TERMS SUBCONTRACT PRICE SUBCONTRACT DOCUMENTS SCOPE OF SUBCONTRACT WORK SURETY BONDING PERFORMANCE OF WORK SUBCONTRACT INTERPRETATION CONTRACTOR'S OBLIGATIONS SUBCONTRACTOR'S OBLIGATIONS lABOR RELATIONS INSURANCE INDEMNIFICATION CHANGES, CLAIMS, AND DELAYS PAYMENT DISPUTE RESOLUTION RECOURSE BY CONTRACTOR TERMINATION BY SUBCONTRACTOR ARTICLE 1 DEFINITION OF SUBCONTRACT TERMS The Contractor and the Subcontractor hereby mutually aqree to the terms and conditions contained herein and in the precedinq paqe(s) (herein called the "Definitions"). ARTICLE 2 SUBCONTRACT PRICE As full compensation for satisfactory performance of the Subcontract, Contractor agrees to pay Subcontractor in current funds the Subcontract Pnce subject to all applicable provisions of the Subcontract. ARTICLE 3 SUBCONTRACT DOCUMENTS 3.1 The Subcontract Documents are listed in the Definitions. 3.2 The Contractor shall make available to the Subcontrãctor, pnor to the execution of the Subcontract Agreement, one (1) copy of the Subcontract Documents to which the Subcontractor will be bound, Additional copies may be fumished to the Subcontractor upOn request at the cost of Contractor's reproduction. The Subcontractor similarly shall make copies of applicable portions of the Subcontract Documents available to its proposed subcontractors and suppliers.- Where any provision of the documents listed in Article 3 hereof, is inconsistent with a provision of the Subcontract Agreement, this Subcontract Agreement shall govern, Nothing in the Subcontract Documents shall be construed to create a contractual relationship between persons or entities other than the Contractor and Subcontractor, ARTICLES 3.3 The Contractor and Subcontractor shall be mutually bdund by the terms of this Aqreement and. to the extent that provisions of the Contract apply to Subcontractor work, the Subcontractor shall assume toward the Contractor all obliQations and responsibilities which the Contractor. under the Contract. assumes toward the Owner and the Architect. The Contractor shall have the benefit of all riQhts. remedies and redress aQainst the Subcontractor. which the Owner. under the Contract. has aQainst the Contractor. Where a provision of the Contract is inconsistent with a provision of this Aqreement, this AQreement shall qovem. ARTICLE 4 SCOPE OF SUBCONTRACT WORK 4.1 The Contractor has retained the Subcontractor to provide the labor, matenals, equipment, and services referred to herein, and to perform the Subcontract Work as an independent contractor. The Subcontractor shall perform such Subcontract Work under the general direction of the Contractor and in accordance with this Subcontract. 4.2 The Subcontract Work as described in the Definitions. shall consist of all work necessary or incidental to complete the work for the Project in accordance with and reasonably inferable from the Subcontract Documents as being necessary to produce the intended results. 4.3 TEMPORARY SERVICES Any temporarv services the Contractor will provide at no charqe to the Subcontractor at the Proiect site dunnQ the performance of this Subcontract are identified in the Definitions under Other Terms and Conditions, The Subcontractor will provide. at its own expense, all other necessary temporary services for the completion of its Subcontract Work. 4.4 OTHER SPECIAL PROVISIONS See Definitions. ARTICLE 5 SURETY BONDING 5.1 COpy OF CONTRACTOR BONDS Deleted. SUBCONTRACTOR BONDS 5.2 5.2.1 If requested by Contractor. the Subcontractor shall fumish to the Contractor, as the named Obligee. appropnate surety bonds to secure the faithful performance of the Subcontract Work and to satisfy all Subcontractor payment obligations ansing thereunder, The Subcontractor surety bond requirements. W any. applicable to this Subcontract are contained in the Definitions. Rev. 09/02 5.2.2 If both a performance and payment bond are required of the Subcontractor under this Subcontract, then said bonds shall be in the full amount of the Subcontract Price, unless otherwise specified herein, and said bonds shall be in a form and by a surety mutually agreeable to the Contractor and Subcontractor, 5.2.3 The Subcontractor shall be reimbursed for the cost of any required performance or payment bonds simultaneously with the first progress payment hereunder. The reimbursement amount for the Subcontractor bonds shall not exceed the actual premium paid for the bonds UP to a maximum of 3% of contract value. 5.2,4 In the event the Subcontractor shall fail to promptly provide any required bonds, the Contractor may terminate this Subcontract and enter into a subcontract for the balance of the Subcontract Work with another subcontractor. All Contractor costs and expenses incurred by the Contractor as a result of said termination shall be paid by the Subcontractor. ARTICLE 6 PERFORMANCE OF WORK 6.1 DATE OF COMMENCEMENT The Date of Commencement is the effective date of this Subcontract Agreement as first written above unless a different date is provided for in the definition of Subcontract Work. 6,2 SCHEDULE OF WORK In a timely fashion, the Subcontractor shall provide the Contractor with any scheduling information proposed by the Subcontractor for the Subcontract Work. In consultation with the Subcontractor, the Contractor shall prepare the schedule for performance of the Contract (hereinafter called the "Schedule of Work") and shall revise and update such schedule, as necessary, as the work progresses.- The Schedule of Work and all subsequent changes and additional details thereto shall be submitted to the Subcontractor promptly and reasonably in advance of the required performance. The Contractor shall have the right to determine and, if necessary, change the time, order, and priority in which the various portions of the work shall be performed and all other matters relative to the timely and orderly conduct of the Subcontractor Work. 6.3 SUBCONTRACT PERFORMANCE The Subcontractor shall use its best care, skill, and diligence in supervising, directing, and performinQ the Subcontract Work. The Subcontractor shall have responsibility and control over the performance of the Subcontract Work, including the construction methods, techniques, means, and sequences for coordinating and completing the various portions of the Subcontract Work, unless the Subcontract gives other specific instructions concerning these matters. 6.4 USE OF CONTRACTOR'S EQUIPMENT The Subcontractor, its agents, employees, subcontractors or suppliers shall use the Contractor's equipment only with the express written permission of the Contractor's designated representative and in accordance with Contractor's terms and conditions for such use. 6.5 SUBCONTRACT TIME The Subcontract Work shall be- completed in accordance with the Schedule of Work. Ifthe Subcontractor's prOQress or performance of the Subcontract Work or the procedure employed in completinQ the Subcontract Work is such that. in the Contractor's opinion, the work will not be completed within the required time. Subcontractor shall at its own expense work overtime, additional shifts, Saturdays and/or Sundays and/or holidays, or hire additional employees, or revise its procedures as may be necessary to meet the Schedule of Work. If Subcontractor fails to take measures to meet the schedule, Contractor may invoke the measures in Article §. 6.6 TIME IS OF THE ESSENCE Time is of the essence for both parties, and they mutually agree to see to the performance of their respective work and the work of their subcontractors and suppliers so that the entire Project may be completed in accordance with the Contract and the Schedule of Work. ARTICLE 7 SUBCONTRACT INTERPRETATION 7.1 INCONSISTENCIES AND OMiSSiONS Shouiå inconsistencies or omissions appear in the Subcontract Documents, it shall be the duty of the Subcontractor to so notify the Contractor in writing within the earlier of (i) three (3) working days of the Subcontractor's discovery thereof or (H) within ninety (90) days of Subcontract date or (Hi) at the time submittals are presented. Within a reasonable time after receivinQ said notice, the Contractor shall instruct the Subcontractor as to the measures to be taken and the Subcontractor shall comply with the Contractor's instructions. If the Subcontractor performs work knowing it to be contrary to any applicable laws, statutes, ordinances, building codes, rules, or regulations without notice to the Contractor and advance approval by appropriate authorities, including the Contractor, then the Subcontractor shall assume full responsibility for such work and shall bear all associated costs, charges, fees, and expenses necessarily incurred to remedy the violation. 7.2 LAW AND EFFECT This Subcontract shall be governed by the law of the State of Wisconsin. 7.3 SEVERABILITY AND WAIVER The partial or complete invalidity of anyone or more provisions of this Subcontract shall not affect the validity or continuing force and effect of any other provision. The failure of either party hereto to insist, in anyone or more instances, upon the performance of any of the terms, Rev. 09102 covenants, or conditions of this Subcontract, or to exercise any right herein, shall not be construed as a ,waiver of relinquishment of such term, covenant, condition, or right as respects further performance, 7.4 ATTORNEY'S FEES Should either party employ or enQaQe an attorney to institute suit or demand arbitration to enforce any of the provisions hereof, to protect its interest in any manner arising under this Subcontract, or to recover on a surety bond furnishedJby a party to this Subcontract, the prevailing party shall be entitled to recover reasonable attorneys' fees, costs, charges, and expenses expended or incurred therein, 7.5 TITLES The titles given to the Articles of this Subcontract Agreement are for ease of reference only and shall not be relied upon or cited for any other purpose. 7.6 ENTIRE AGREEMENT This Subcontract is solely for the benefit of the signatories hereto and represents the entire and integrated agreement between the parties hereto and, unless specifically referenced herein, supersedes all prior negotiations, representations, or agreements, either written or oral. ARTICLE 8 CONTRACTOR'S OBLIGATIONS 8.1 AUTHORIZED REPRESENTATIVE The Contractor shall designate one or more persons who shall be the Contractor's authorized representative(s) on.site and off-site, Such authorized representative(s) shall be the only person(s) the Subcontractor shall look to for instructions, orders, and/or directions, except in an emergency. 8.2 STORAGE At the sole discretion of the Contractor's authorized representative, Subcontractor mav be allowed to store materials on-site if space is available. 8.3 TIMELY COMMUNICATIONS The Contractor, with reasonable promptness, shall transmit to the appropriate parties all submittals, transmittals, and written approvals relating to the Subcontract Work. Unless otherwise specified in the Subcontract Documents, communications by and with the Subcontractor's subcontractors, material men, and suppliers shall be through the Subcontractor. 8.4 ADDITIONAL SERVICES RENDERED OR MATERIALS FURNISHED The Contractor agrees that, except as otherwise provided in this Subcontract, no claim for additional services rendered or materials furnished to the Subcontractor shall be valid unless the Contractor gives the Subcontractor: (a) notice prior to the furnishing of the services and/or materials, except in an emergency affecting the safety of persons or property; (b) written notice of claim within ten (10) calendar days of first rendering such services or furnishing such materials; and (c) written compilations of the charges relating to such services or materials no later than the thirtieth (30th) day of the calendar month following that in which the services are rendered or materials furnished. 8.5 LAYOUT RESPONSIBILITY AND LEVELS The Contractor shall establish principal axis lines of the building and site whereupon the Subcontractor shall layout and be strictly responsible for the accuracy of the Subcontract Work and for any loss or damage to the Contractor or others by reason of the Subcontractor's failure to set out or perform its work correctly. The Subcontractor shall exercise prudence so that the actual final conditions and details of its Subcontract Work shall result in alignment of finish surfaces, 8.6 OWNER ABILITY TO PAY Deleted. ARTICLE 9 SUBCONTRACTOR'S OBLIGATIONS 9.1 RESPONSiBiliTiES The Subcontractor shall, to the satisfaction of the Contractor and Owner, furnish all of the labor, materials, equipment, and services, including, but not limited to, competent supervision, shop drawings, samples, tools, and scaffolding as are necessary for the proper performance of the Subcontract Work in accordance with and reasonably inferable from the Subcontract Documents. The Subcontractor shall provide to the Contractor a list of its proposed subcontractors and suppliers if requested, and be responsible for taking field dimensions. providing tests, ordering of materials and all other actions as required to perform the Subcontract Work and to comply with the Schedule of Work. 9.2 SUBCONTRACTOR'S OBLIGATIONS FOR SITE VISITATION The Subcontractor acknowledges that it has visited the Project site and visually inspected the general and local conditions which could affect the performance of 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. Rev. 09/02 9.3. SHOP DRAWINGS, SAMPLES, PRODUCT DATA, 'AND MANUFACTURERS' LITERATURE 9.3.1 The Subcontractor promptly shall submit for approval to the Contractor bv the daters) specified in the Subcontract Work section all shop drawings, samples, product data, manufacturers' literature, and similar submittals required by the Subcontract Documents, The Subcontractor shall be responsible to the Contractor for the accuracy and conformity of its submittals to the Subcontract Documents. The Subcontractor shall prepare and deliver its submittals to the Contractor in a manner consistent with the Schedule of Work and in such time and sequence so as not to delay the Contractor or others in the performance of the Contract work, The approval of any Subcontractor submittal shall not be deemed to authorize deviations, substitutions, or changes in the requirements of the Subcontract Documents unless express written approval is obtained from the Contractor and Owner authorizing such deviation, substitution, or change. In the event that the Subcontract Documents do not contain submittal requirements pertaining to the Subcontract Work, the J Subcontractor agrees upon request to submit in a timely fashion to the Contractor for approval any shop drawings, samples, product data, manufacturers' literature or similar submittals as may reasonably be required by the Contractor, Owner, or Architect without anv additional compensation to the Subcontractor. 9.3.2 The Contractor, Owner, and Architect are entiiled to reiy on the accuracy and compieteness of any professional certifications required by the Subcontract Documents concerning the performance criteria of systems, equipment, or materials, including all calculations relating thereto and any governing performance requirements. 9.4 COORDINATION AND COOPERATION The Subcontractor shall: (a) cooperate with the Contractor and all others whose work may interface with the Subcontract Work; (b) specifically note and immediately advise the Contractor of any interference with the Subcontract Work; and (c) participate in the preparation of coordination drawings and work schedules involving the Subcontract Work, 9.5 AUTHORIZED REPRESENTATIVE The Subcontractor shall designate one or more persons who shall be the authorized Subcontractor's representative(s) on-site and off-site, Such authorized representative(s) shall be the only person(s) to whom the Contractor shall issue instructions, orders, or directions, except in emergency. 9.6 COMMUNICATIONS Unless otherwise provided in the Subcontract Documents, Subcontractor communications by and with the Owner, Architect, separate contractors, and/or other subcontractors and' suppliers of Contractor, regardless of tier, shall be through the Contractor. 9.7 TESTS AND tNSPECTIONS The Subcontractor shall schedule all required tests, approvals, and inspections of the Subcontract Work or portions thereof at appropriate times so as not to delay the progress of the work. The Subcontractor shall give proper written notice to all required parties of such tests, approvals, and inspections. The Subcontractor shall bear all expenses associated with tests, inspections, and approvals required of the Subcontractor by the Subcontract Documents which, unless otherwise agreed to, shall be documented by an independent testing laboratory or entity approved by the Contractor and Owner. Required certificates of testing, approval or inspection shall, unless otherwise required by the Subcontract Documents, be secured by the Subcontractor and promptly delivered to the Contractor, 9.8 WORKMANSHIP AND MATERIALS Every part of the Subcontract Work shall be executed in accordance with the Subcontract Documents in a workmanlike and substantial manner. All materials used in the Subcontract Work shall be furnished in sufficient quantities to facilitate the proper and expeditious execution of the work, and shall be new except such materials as may be expressly provided in the Subcontract Documents to be otherwise. 9.9 MATERIALS FURNISHED BY OTHERS In the event the scope of the Subcontract Work includes installation of materials or equipment furnished by others, it shall be the responsibility of the Subcontractor to examine the items so provided and thereupon handle, store, and install the items, unless otherwise provided in the Subcontract Documents, with such skill and care as to ensure a satisfactory and proper installation. Loss or damage due to acts of the Subcontractor shall be deducted from any amounts due or to become due the Subcontractor under this Subcontract. 9.10 SUBSTITUTIONS No substitutions shall be made in materials or equipment unless permitted in the Subcontract Documents and only then upon the Subcontractor first receiving all approvals required under the Subcontract Documents for substitutions. 9.11 WARRANTY The Subcontractor warrants its work against all deficiencies and defects in materials and/or workmanship and as called for in the Subcontract Documents. The Subcontractor agrees to satisfy such warranty obligations which appear within the warranty period established in the Subcontract Documents without cost to the Owner or the Contractor. Rev. 09/02 Unless otherwise specified in the Subcontract Documents, the Subcontractor shall warrant its work as 'described above for a period of one (1) year from the date(s) of substantial completion of all or each designated portion of the Subcontract Work or acceptance or use by the Contractor or Owner of each designated area, system, equipment, and/or items, whichever is sooner. In no event will the Subcontractor's warrantv be for a shorter time or terminate earlier than the Contractor's warrantv to Owner. The Subcontractor further agrees to furnish any special warranties that shall be required in accordance with the Subcontract Documents for the Subcontract Work prior to final payment. 9.12 UNCOVERING/CORRECTION OF WORK 9.12.1 UNCOVERING OF WORK If required in writing by the Contractor, the Subcontractor must uncover any portion of the Subcontract Work which has been covered by the Subcontractor in violation of the Subcontract Documents or contrary to a directive issued to the Subcontractor by the Contractor. Upon receipt of a written directive from the Contractor, the Subcontractor shall uncover such work for the Contractor's or Owner's inspection and then restore the uncovered work to its original condition at the Subcontractor's time and expense. 9.12.2 The Contractor may direct the Subcontractor to uncover portions of the Subcontract Work for inspection by the Owner or Contractor at any time. The Subcontractor is required to uncover such work whether or not the Contractor or Owner had requested to inspect the work prior to it being covered. Except as provided in Paragraph 9.12.1, the Subcontract shall be adjusted by change order for the cost and time of uncovering and restoring any work which is uncovered for inspection and proved to be installed in accordance with the Subcontract Documents, provided the Contractor had not previously instructed the Subcontractor to leave the work uncovered. If the Subcontractor uncovers work pursuant to a directive issued by the Contractor, and such work upon inspection does not comply with the Subcontract Documents, then the Subcontractor shall be responsible for all costs and time of uncovering, correcting, and restoring the work so as to make it conform to the Subcontract Documents. If the Contractor or some other entity for which the Subcontractor is not responsible, caused the nonconforming condition, the Contractor shall be required to adjust the Subcontract by change order for all such costs and time. 9.12.3 CORRECTION OF WORK The Subcontractor shall correct in a timely fashion any Subcontract Work rejected by the Contractor or Owner for failing to comply with the Subcontract Documents whether observed prior to the commencement of the warranty period(s) or during the warranty period(s) established under Paragraph 9.11. The Subcontractor shall correct at its own cost and time and bear the expense of additional 5 services for any nonconforming Subcontract Work for which it is responsible. 9.13 CLEANUP The Subcontractor shall follow the Contractor's cleanup directions, and (a) at all times keep the building and premises free from debris resulting from the Subcontract Work; and (b) broom clean each work area discontinuing work in each area, prior to If the Subcontractor fails to immediately commence compliance with cleanup duties within twenty-four (24) hours after written notification from the Contractor of noncompliance, the Contractor may implement appropriate cleanup measures without further notice and deduct the cost thereof from any amounts due or to become due the Subcontractor under this Subcontract. 9.14 SAFETY OF PERSONS AND PROPERTY 9.14.1 The Subcontractor is required to perform the Subcontract Work in a safe and reasonable manner. The Subcontractor shall seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect: (a) (b) employees and other persons at the site; materials and equipment stored at the site or at off-site locations for use in performance of the Contract Work; and (c) all property and structures located at the site and adjacent to work areas, whether or not said property or structures are part of the Project or involved in the Contract Work. 9.14.2. The Subcontractor shall give all required notices and comply with all applicable rules, regulations, orders, and other lawful requirements established to prevent injury, loss, or damage to persons or property. 9.14.3 The Subcontractor shall implement appropriate safety measures pertaining to the Subcontract Work and the Project, including establishing safety rules, posting appropriate warnings and notices, erecting safety barriers, and establishing proper notice procedures to protect persons and property at the site' and adjacent thereto from injury, loss, or damage. 9.14.4 The Subcontractor shall exercise extreme care in carrying out any Subcontract work which involves explosive or other dangerous methods of construction or hazardous procedures, materials or equipment. At all times relevant hereto, the Subcontractor shall use properly qualified individuals or entities to carry out the Subcontract Work in a safe and reasonable manner so Rev, 09/02 , as to reduce the risk of personal injury or property damage. 9.14.5 The Subcontractor is required to promptly remedy any loss or damage caused to the work, materials, equipment, and property referred to in clauses 9.14.1(b) and 9.14,1(c), if said loss or damage is not covered by insurance required under the Contract, but only to the extent caused in whole or in part by the Subcontractor and/or persons or entities performing work for or on behalf of the subcontractor, regardless of tier, who have furnished labor, materials, or services relating to the Subcontract and for whose acts the Subcontractor may be liable. The Subcontractor shall not be required to remedy any loss or damage which is not attributable to the fault or negligence of the Subcontractor or of any person or entity for whose acts the Subcontractor may be liable, 9.14.6 The Subcontractor is required to designate an individual at the site in the employ of the Subcontractor who shall act as the Subcontractor's designated safety representative with a duty to prevent accidents, Unless otherwise identified by the subcontractor in writing to the Contractor, the designated safety representative shall be the Subcontractor's project superintendent. 9.14.7 The Subcontractor has an affirmative duty not to overload the structures or conditions at the site and shall take reasonable steps not to load any part of the structures, or site so as to give rise to an unsafe condition or create an unreasonable risk of personal injury or property damage. The Subcontractor shall have the right to request, in writing, from the Contractor loading information concerning the structures at the site. 9.14.8 The Subcontractor shall give prompt written notice to the Contractor of any accident involving personal injury requiring a physician's care, any property damage exceeding Five Hundred Dollars ($500.00) in value, or any failure that could have resulted in serious personal injury, whether or not such an injury was sustained. 9.14.9 Prevention of accidents at the site is the responsibility of the Contractor, Subcontractor, and all other subcontractors, persons, and entities at the site. Establishment of a safety program by the Contractor shall not relieve the Subcontractor or other parties of their safety responsibilities, The Subcontractor shall establish Its own safety program implementing safety measures, policies, and standards conforming to those required or recommended by governmental and quasi- governmental authorities having jurisdiction and by the Contractor and Owner, including, but not limited, requirements imposed by the Subcontract Documents. The Subcontractor shall comply with the reasonable recommendations of insurance companies having an interest in the Project, and shall stop any part of the Subcontract Work which the Contractor deems unsafe until corrective measures satisfactory to the Contractor 6 shall have been taken. The Contractor's failure to stop the Subcontractor's unsafe practices shall not relieve the Subcontractor of the responsibility therefor. The Subcontractor shall notify the Contractor immediately following an accident and promptly confirm the notice in writing. A detailed written report shall be furnished if requested by the Contractor, The Subcontractor shall indemnify the Contractor for fines, or penalties imposed on the Contractor as a result of safety violations, but only to the extent that such fines, or penalties are caused by the Subcontractor's failure to comply with applicable safety requirements, and then only to the extent that such fines or penalties are determined to be the Subcontractor's responsibility based upon the particular failure of compliance cited, and not due to prior or repeated safety violations by the Contractor. 9.15 PERMITS, FEES, AND LICENSES The Subcontractor shall give adequate notices to authorities pertaining to the Subcontract Work and secure and pay for all permits, fees, licenses, assessments, inspections, and taxes necessary to complete the Subcontract Work in accordance with the Subcontract Documents. To the extent obtained by the Contractor, the Subcontractor shall be compensated for additional costs r,esulting from laws, ordinances, rules, regulations, and taxes enacted after the date of this Subcontract Agreement. 9.16 DELEGATION OR SUBCONTRACTING OF DUTIES The Subcontractor is prohibited from delegating, transferring, conveying, subcontracting, relinquishing, or otherwise disposing of the whole or any part of its duties under this Subcontract without the prior written approval of the Contractor.- 9.17 MATERIALS SAFETY 9.17.1 Should the Subcontractor encounter asbestos, polychlorinated biphenyl (PCB) or other hazardous substances at the site which potentially are harmful to persons or property, then the Subcontractor shall take all steps required by the Subcontract Documents and by law to protect persons and property from injury or damage, including stopping the Subcontract Work in the affected areas and promptly advising the Contractor in writing of the conditions encountered at the site. Should the Subcontractor be required to stop work in any area of the Project as a result of hazardous substances located at the site, then the Subcontractor shall not resume its Subcontract Work in the affected area until (a) the hazardous substances have been removed or made harmless, (b) the Contractor and Subcontractor agree in writing to commence work in all or a portion of the area, (c) the Owner orders the work to proceed in the affected area and the parties agree, or (d) the matter is resolved through arbitration as provided for in this Subcontract Agreement. The Subcontractor shall not be required to perform work in areas containing asbestos, PCBs, or any other hazardous substances defined by Rev. 09/02 the. Subcontract Documents, without the Subcontractor's consent. 9.17.2 Material Safety Data (MSD) sheets as required by law and pertaining to materials or substances used or consumed in the performance of the Subcontract Work shall be submitted to the Contractor by the Subcontractor. MSD sheets obtained by the Contractor from other subcontractors or sources shall be made available to the Subcontractor by the Contractor. ARTICLE 10 LABOR RELATIONS 10.1 Contractor is siqnatorv to collective barqaininq aqreements with the followinq unions: carpenters, cement finishers, ironworkers, laborers, masons, operatinç¡ enqlneers, and truck drivers. The collective barç¡aininq aqreements contain subcontractinç¡ clauses that prevent the Contractor from subcontractinç¡ work covered by the collective barç¡aininq aqreements to "non-union" subcontractors, For types of work covered by Contractor's collective barqaininç¡ aç¡reements, Subcontractor shall perform work at the Proiect site with workers covered by the appropriate coilective barç¡aininç¡ aqreement. ARTICLE 11 iNSURANCE 11.1 SUBCONTRACTOR'S INSURANCE Prior to start of the Subcontract Work, the Subcontractor shall procure for the Subcontract Work and maintain in force Workers' Compensation Insurance, Employers Liability Insurance, Comprehensive or Commercial Automobile Liability Insurance, Comprehensive or Commercial General Liability Insurance on an occurrence basis, and any other insurance required of Subcontractor under the subcontract. The Commercial Liability Insurance required under this paraqraph shall include coveraç¡e for property damaqe hazards of explosion, coilapse, and underqround (xcu) and products/completed operations extendinq one (1) year after completion of the work or such lonç¡er period as the Contract may require. The Subcontractor shail cause its insurer(s) to list Contractor and whoever the Subcontract Documents require the Contractor to name as additional insureds on each of these policies except for Workers' Compensation. Subcontractor shall see to it that the liability insurance provided the additional insureds is primary with respect to any and all claims or losses incurred and not excess over or contributory with any other valid, applicable, and coilectible insurance in force for an additional insured, The Subcontractor's insurance shall include contractual liability insurance covering the Subcontractor's obligations under this Subcontract. 11.2 MINIMUM LIMITS OF LIABILITY The Subcontractor's Comprehensive or Commercial General Liability Insurance and Comprehensive Automobile Liability Insurance, as required by Paragraph 11.1, shall be written with limits of liability not less than the limits of liability as contained in the Definitions, 11.3 NUMBER OF POLICIES Comprehensive or Commercial General Liability Insurance and other liability insurance may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability Policy. 11.4 CANCELLATION, RENEWAL, OR MODIFICATION The Subcontractor shall maintain in effect ail insurance coverage required under this Subcontract at the Subcontractor's sole expense and with insurance companies mutually agreeable to the Contractor and Subcontractor. Ail insurance policies shail contain a provision that the coverages afforded thereunder shall not be canceiled or not renewed, nor restrictive modificatIons added, until at least thirty (30) calendar days prior written notice has been given to the Contractor, unless otherwise specificaily required in the Subcontract Documents. "Certificates of Insurance, or certified copies of policies reasonably acceptable to the Contractor, shail be filed with the Contractor prior to the commencement of the Subcontract Work. In the event the Subcontractor fails to obtain or maintain any insurance coverage required under this Subcontract, the Contractor may purchase such coverage and charge the expense thereof to the Subcontractor, or terminate this Subcontract. The Subcontractor shail maintain completed operations liability insurance for one year after acceptance of the Subcontract Work, substantial completion of the Project, or to the time required by the Subcontract Documents, whichever is longer. The Subcontractor shall furnish the contractor evidence of such insurance at the time of completion of the Subcontract Work. 11.5 WAIVER OF RIGHTS The Contractor and Subcontractor waive ail rights against each other and the Owner, the Architect, the Architect's consultants and agents or employees of any of them, separate contractors, and all other subcontractors for loss or damage to the extent covered by Builder's Risk or any other_property insurance, except such rights as they may have to the proceeds of such insurance, 11.6 BUILDER'S RISK INSURANCE 11,6,1 Upon written request of the Subcontractor, the Contractor shail provide the Subcontractor with a copy of the Builder's Risk policy of insurance or any other property insurance in force for the Project and procured by the Contractor. Rev. 09/02 11.6,.2 If the Owner or Contractor has not purchased Builder's Risk insurance required under the Contract or Subcontract for the full insurable value of the Subcontract Work, then the Subcontractor may procure such insurance as will protect the interests of the Subcontractor, its subcontractors, and their subcontractors in the Subcontract Work, and, by appropriate Subcontract change order, the cost of such additional insurance shall be reimbursed to the Subcontractor. 11.6.3 if not covered under the Builder's Risk policy of insurance or any other property or equipment insurance required by the Contract or Subcontract, the Subcontractor shall procure and maintain at the Subcontractor's own expense property and equipment insurance for portions of the Subcontract Work stored off the site or in transit, when such portions of the Subcontract Work are to be included in an application for payment under Article 14. 11.7 ENDORSEMENT If the policies of insurance referred to in this Article require an endorsement to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed. ARTICLE 12 INDEMNIFICATION 12.1 iNDEMNiFiCAfiON The Subcontractor shaii indemnify, defend, and hold the Contractor, Owner, Architect, their agents, consultants, and employees harmless from and against all claims, losses, costs and damages, including but not limited to attorneys' fees, pertaining to the performance of the Subcontract and involving personal injury, sickness, disease, death or property damage, including loss of use of property resulting therefrom but not damage to the work itself, provided that the claim, loss, cost or expense is caused in whole or in part by the negligent acts or omissions of the Subcontractor, or any of the Subcontractors' subcontractors, suppliers, manufacturers, or other persons or entities for whose acts the Subcontractor may be liable. This indemnification agreement is binding on the Subcontractor, to the fullest extent permitted by law, regardless of whether any or all of the persons and entities indemnified hereunder are responsible in part for the claims, damages, losses, or expenses for which the Subcontractor is obligated to provide indemnification. This indemnification provision does not negate, abridge, or reduce any other rights or obligations of the persons and entities described herein with respect to indemnity. 12.2 NO LIMITATION UPON LIABILITY To the fullest extent permitted by law, in any and all claims against the Owner, the Architect, Architect's consultants, agents, and employees, the Contractor (including its affiliates, parents, and subsidiaries) and other contractors or subcontractors, or any of their agents or employees, by any employee of the Subcontractor, anyone directly or indirectly employed by the Subcontractor or anyone for whose acts the Subcontractor may be liable, the indemnification obligation under this Article 12 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' or workmen's compensation acts, disability benefit acts, or other employee benefit acts. 12.3 ARCHITECT EXCLUSION The obligations of the Subcontractor under this Article 12 shall not extend to the liability of the Architect, the Architect's consultants, agents or employees of any of them, arising out of: (a) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or (b) the giving of or the failure to give directions or instructions by the Architect, the Architect's consultants, and agents or employees of any of them provided such giving or failure to give is the primary cause of the injury or damage. 12.4 COMPLIANCE WITH LAWS The Subcontractor agrees to be bound by, and at its own cost, comply with all federal, state, and local laws, ordinances, and regulations (hereinafter collectively referred to as "laws") appiicabie 10 Ihe Subcontract Work including, but not limited to, equal employment opportunity, minority business enterprise, women's business enterprise, disadvantaged business enterprise, and all other laws with which the Subcontractor must comply according to the Subcontract Documents. The Subcontractor shall be liable to the Contractor and the Owner for all loss, cost, and expense attributable to any acts of commission or omission by the Subcontractor, its employees, and agents resulting from the failure to comply therewith, including, but not limited to, any fines, penalties, or corrective measures, except as provided in Subparagraph 9.14.9. 12.5 PATENTS Except as otherwise provided by the Subcontract Documents, the Subcontractor shall pay all royalties and license fees which may be due on the inclusion of any patented materials in the Subcontract Work. The Subcontractor shall defend all suits for claims for infringement of any patent rights arisihg out of the Subcontractor Work, which may be brought against the Contractor or Owner, and shall be liable to the Contractor and Owner for all loss, including all costs, expenses, and attorneys' fees, but shall not be responsible for such defense or loss when a particular design, process, or product of a particular manufacturer or manufacturers is required by the Subcontract Documents. However, if the Subcontractor has reason to believe that a particular design, process, or product required by the Subcontract Documents is an Rev. 09/02 infringement of a patent, then the Subcontractor shall promptly furnish such information to the Contractor or be responsible to the Contractor and Owner for any loss sustained as a result thereof, 13.1 ARTICLE 13 CHANGES, CLAIMS AND DELAYS CHANGES 13.1.1 SUBCONTRACT CHANGE A Subcontract Change is any change in the Subcontract Work within the general scope of the Subcontract including a change in the drawings, specifications, or technical requirements of the Subcontract and/or a change in the Schedule of Work affecting the performance of the Subcontract. 13.1.2 CHANGE ORDER When the Contractor orders in writing, the Subcontractor, without nullifying this Subcontract, shall perform any and all changes in the Subcontract Work which are within the general scope of this Subcontract. Adjustments in the Subcontract Price or Subcontract Time, if any, resulting from such changes shall be set forth in a Subcontract Change Order or a Subcontract Construction Change Directive pursuant to the Subcontract Documents. No such adjustments shall be made for any changes performed by the Subcontractor that have not been ordered by the Contractor.- A Subcontract Construction Change Directive is a written instrument prepared and siQned by the Contractor directing a change in the Subcûlltract Work and stating a proposed adjustment, if any, in the Subcontract Price or Subcontract Time or both, A Subcontract Construction Change Directive shall be used in the absence of agreement on the terms of a Subcontract Change Order. 13.1.3 SUBCONTRACT CONSTRUCTION CHANGE DIRECTIVE The Subcontractor shall comply with all Subcontract Construction Change Directives received from the Contractor and perform the required changes in the Subcontract Work in a prompt and expeditious manner. The Subcontractor shall evaluate the proposed adjustment in the Subcontract Price or Subcontract Time, if any, as set forth in the Subcontract Construction Change Directive and respond, in writing, to the Contractor stating the Subcontractor's acceptance or rejection of the proposed adjustment and the reasons therefor. The Subcontractor may agree to the Subcontract Construction Change Directive and the terms of the proposed adjustment, if any, by signing the Subcontract Construction Change Directive and returning it forthwith to the Contractor. 13.1,4 ADJUSTMENT IN SUBCONTRACT PRICE If a Subcontract Change Order or Subcontract Construction Change Directive requires an adjustment in the Subcontract Price, the adjustment shall be the Subcontractor's net cost Ius a 10% marku for overhead and profit, unless the Subcontract Docu provide for a lower markup. 13.1.5 SUBSTANTIATION OF ADJUSTMENT The Subcontractor's Quote for the adiustment in the Subcontract Price shall be substantiated with Quantities. hours, hourly rates, material invoices, etc.. in sufficient detail for the Contractor to determine the reasonableness of the amount requested. 13.1.6 INCIDENTAL CHANGES IN THE SUBCONTRACT WORK The Contractor may direct the Subcontractor to perform incidental changes in the Subcontract Work which do not involve adjustments in the Subcontract Price or Subcontract Time. Incidental changes shall be consistent with the scope and intent of the Subcontract Documents. The Contractor shall initiate an incidental change in the Subcontract Work by issuing a written change order to the Subcontractor. Such written orders shall be carried out promptly and are binding on the parties. 13.2 CLAIMS 13.2.1 CLAIM A claim is a demand or assertion made in writing by the Contractor or the Subcontractor seeking an adjustment in the Subcontract Price and/or Subcontract Time, an adjustment or interpretation of the Subcontract terms, or other relief arising under or reiating to this Subcontract, including the resolution of any mailers in dispute beiween ihe Contracior and Subcontractor in connection with the Project. 13.2.2. CLAIMS RELATING TO OWNER The Subcontractor agrees to make all claims against the Contractor for which the Owner is or may be liable in the same manner and within the time limits provided in the Contract for like claims by the Contractor against the Owner and in sufficient time for the Contractor to make suCh claims against the Owner in accordance with the Contract. The Contractor agrees to permit the Subcontractor to prosecute a claim in the name of the Contractor for the use and benefit of the Subcontractor in the manner provided in the Contract for like claims by the Contractor against Owner. The Contractor shall make available to the Subcontractor, prior to the execution of this Subcontract Agreement, copies of all Contract provisions pertaining to claims by the Contractor against the Owner. 13.2.3 CLAIMS RELATING TO CONTRACTOR The Subcontractor shall give the Contractor written notice of all claims not included in Subparagraph 13.2.2 or 16.7.3 within seven (7) calendar days of the date when the Subcontractor knew of the facts giving rise to the event for which claim is made; otherwise, such claims shall not be valid, 13.2.4 UNRESOLVED CLAIMS, DISPUTES AND OTHER MATTERS All unresolved claims, disputes and Rev, 09/02 other matters in question between the Contractor and Subcontractor, not relating to claims included in Paragraph 12.5, shall be resolved in the manner provided In Article 15 herein. 13.3 DELAY 13.3.1 If the Subcontractor is delayed in the performance of the Subcontract Work for any reason beyond the Subcontractor's control, and without the Subcontractor's fault or negligence, including delays caused in whole or in part by the Contractor, Owner, Architect or any other persons, entities or events, or if the Subcontract Work is delayed by order of the Contractor, Owner or an authorized representative of either, or if the Subcontract Work is delayed for any reason or cause for which the Contractor, Owner, or Architect concludes has resulted in excusable delay, then the Subcontractor is entitled to an extension of the Subcontract Time in which to complete its work. Said extension shall be set forth in a Subcontract Change Order for such time as the parties may agree is reasonable, and shall be Subcontractor's sole remedy for a delay in the performance of the Subcontract Work. 13.3.2 Claims relating to time shall be made in accordance with applicable provisions of the Subcontract Documents.- Subcontractor expressly aGrees that it is not entitled to seek and will make no claim for damaGes or additional compensation based on delav, hindrance of work, impacts on proGress, season ChanGes, disruption, ioss of productivity or efficiency, or schedule chanGes resultinG from any cause whatsoever. 13.3.3 LIQUIDATED DAMAGES If the Contract provides for liquidated or other damages for delay beyond the completion date set forth in the Contract, and such damages are assessed by the Owner against the Contractor, then the Contractor may assess such damages against the Subcontractor in proportion to its share of the responsibiJity for such delay and damage, but no more. The amount of such assessment against the Subcontractor, if any, shall not exceed the Subcontractor's proportionate share of the responsibility for such delay and damage and shall never exceed the amount assessed against the Contractor by the Owner. Nothing in Subparagraph 13.3.3 shall limit the Contractor's right to recover all actual damages sustained by the Contractor as a result of the Subcontractor delay, ARTICLE 14 PAYMENT 14.1 GENERAL PROVISIONS 14.1.1 SCHEDULE OF VALUES Within fourteen (14) calendar days from the date of execution of this Subcontract Agreement, the Subcontractor shall prepare and submit to the Contractor a Schedule of Values 10 apportioned to the various divisions or phases of the Subcontract Work. Each line item contained in the Schedule of Values shall be assigned a monetary price such that the total of all such items shall equal the Subcontract Price. The Schedule of Values shall be prepared in such detail as may be required by the Contractor and must be supported by such documents and proof as the Contractor may require. 14.1.2 COpy OF PAYMENT REQUEST Deleted. 14.1.3 PAYMENT USE AND VERIFICATION The Subcontractor is required to pay for all labor, materials, and equipment used in the performance of the Subcontract Work through the most current period applicable to progress payments received from the Contractor. Reasonable evidence, satisfactory to the Contractor, may be required to show that all obligations relating to the Subcontract Work are current before releasing any payment due on the Subcontract Work. If required by the Contractor, before final payment is made for the Subcontract Work, the Subcontractor shall submit evidence satisfactory to the Contractor that all payrolls, bills for materials and equipment; and all known indebtedness connected with the Subcontract Work, have been paid or otherwise satisfied as set forth in paragraph 14.3.2. The Contractor shall have the right at all times to contact the Subcontractor's subcontractors and suppliers to insure that they are being paid by the Subcontractor for labor and materials furnished for use in performing the Subcontract Work, 14.1.4 SUBCONTRACTOR ASSIGNMENT OF RECEIVABLES No assiGnment of any riGhts under this Subcontract, includinG any payment due or which may become due Subcontractor. shall be made without the express written consent of Contractor. Any assiGnment made without Contractor's written consent shall be void. 14.1.5, PAYMENT NOT ACCEPTANCE Payment to the Subcontractor does not constitute or imply acceptance of any portion of the Subcontract Work. 14.2. PROGRESS PAYMENTS 14.2.1 APPLICATIONS Subcontractor's applications for payment shall be itemized and supported by the Subcontractor's Schedule of Values, Subcontractor shall use the Application for Payment forms provided by the Contractor. ' 14.2.2. PARTIAL LIEN WAIVERS AND AFFIDAVITS Contractor will provide partial lien waiver forms with each payment. Subcontractor is to sian and return to Contractor in a timely manner. 14.2.3. REJECTION OF SUBCONTRACTOR'S PAYMENT APPLICATION The Contractor may reject a Subcontractor payment application or nullify a previously approved Subcontractor payment application, in whole Rev. 09/02 or.in part, as may reasonably be necessary to protect the Contractor from loss or damage based upon: (a) the Subcontractor's repeated failure to perform the Subcontract Work as required by the Subcontract; (b) loss or damage arising out of or relating to the Subcontract and caused by the Subcontractor to the Owner, Contractor or others to whom the Contractor may be liable; (c) the Subcontractor's failure to properly pay for labor, materials, equipment or supplies furnished in connection with the Subcontract Work; (d) rejected, nonconforming or defective Subcontract Work which has not been corrected in a timely fashion; (e) reasonable evidence of delay in performance of the Subcontract Work such that the work will not be completed within the Subcontract Time, and that the unpaid balance of the Subcontract Price is not sufficient to offset the liquidated damages or actual damages that may be sustained by the Contractor as a result of the anticipated delay caused by the Subcontractor; (f) reasonable evidence demonstrating that the unpaid balance of the Subcontract Price is insufficient to cover the cost to complete the Subcontract Work; (g) third party claims involving the Subcontractor or reasonable evidence demonstrating that third party claims are likely to be filed unless and until the Subcontractor furnishes the Contractor with adequate security in the form of a surety bond, letter of credit or other collateral or commitment which are sufficient to discharge such claims if established, The Contractor shall Dive notice to the Subcontractor, at the time of disapproving or nullifying an application for payment, of the specific reasons therefor, When the above reasons for disapproving or nullifying an application for payment are removed, payment will be made for amounts previously withheld. 14.2.4 RETAINAGE/SECURITY The rate of retainage shall be 10%. 14.2.5 TIME OF APPLICATION For each progress payment period, the Subcontractor shall submit its progress payment application to the Contractor for the Subcontract Work performed to date no later than the 25'" of the month. To the extent allowed under Subparagraph 14,2.6 of this Subcontract Agreement, the Subcontractor may include in its progress payment applications to the Contractor materials and equipment 11 suitably stored at the site or elsewhere for use in performance of the Subcontract Work. 14.2.6 STORED MATERIALS AND EQUIPMENT Unless otherwise provided in the Subcontract Documents, applications for payment may include materials and equipment not incorporated into the Subcontract Work but delivered to and suitably stored at the site, Applications for payment may include materials and equipment delivered to and suitably stored off site, if allowed under the Contract and properly approved. Approval of payment applications for materials and equipment stored on or off site shall be conditioned on submission by the Subcontractor of bills of sales and applicable insurance or such other procedures satisfactory to the Owner and Contractor to establish the proper valuation of the stored materials and equipment, the Owner's title to such materials and equipment, and to otherwise protect the Owner's and Contractor's interests herein, including transportation to the site. 14.2.7 TIME OF PAYMENT Progress payments to the Subcontractor for satisfactory performance of the Subcontract Work shall be made no later than seven (7) calendar days after receipt by the Contractor of payment from the Owner for the Subcontract Work. 14.2.8 PAYMENT DELAY Deleted. 14.3 FINAL PAYMENT 14.3.1 APPLICATION Upon acceptance of the Subcontract Work by the Contractor, and upon the Subcontractor furnishing evidence of fulfillment of the Subcontractor's obligations in accordance with the Subcontract Documents, the Contractor shall incorporate the Subcontractor's application for final payment into the Contractor's next application for payment to the Owner without delay, or notify the Subcontractor if there is delay and the reasons therefor. 14.3.2 REQUIREMENTS Before the Contractor shall required to incorporate the Subcontractor's application for final payment into the Contractor's next application for payment to the Owner, the Subcontractor shall furnish to the Contractor: (a) if required by the Subcontract, an affidavit that all payrolls, bills for materials and equipment, and other indebtedness connected with the Subcontract Work for which the' Owner or its property or the Contractor or the Contractor's surety might in any way be liable, have been paid or otherwise satisfied; (b) consent of the Subcontractor's surety to final payment, if required; (c) satisfaction of closeout procedures as may be required by the Subcontract; Rev, 09/02 (d) certification that insurance required by the . Subcontract remain in effect beyond final payment pursuant to this Subcontract Agreement is in effect and will not be canceied or allowed to expire without at least thirty (30) calendar days written notice to the Contractor, unless a longer period is stipulated in the Subcontract Documents; and (e) other data if required by the Contractor, such as receipts, releases, and waivers of liens effective upon payment to the extent and in such form as may be designated by the Contractor. Acceptance of final payment by the Subcontractor shall constitute a waiver of claims by the Subcontractor. 14,3.3 TIME OF PAYMENT Final payment of the balance due of the Subcontract Price shall be made to the Subcontractor within seven (7) calendar days after receipt by the Contractor of final payment from the Owner for such Contract Work, 14.3.4 FINAL PAYMENT DELAY If the Owner delays final payment for the Subcontract Work, or the Contractor does not receive final payment for the Subcontract Work for any cause which is not the fault of the Subcontractor, the Contractor shall promptly inform the Subcontractor in writing. The Contractor also shall diligently pursue, with the assistance of the Subcontractor, the prompt release by the Owner of the final payment due for the Subcontract Work. If final payment from the Owner for such Subcontract work is not received by the Contractor, through no fault of the Subcontractor, the Contractor will make payment to the Subcontractor within a reasonable time, 14,3.5 LATE PAYMENT INTEREST Deleted, 14.4 BOND AND MECHANIC'S LIEN RIGHTS In the event that any applicable law, statute, regulation or bond requires Subcontractor to take any action prior to the expiration of the reasonable time for payment referenced in Subparagraphs 14.2,7 and 14.3.4, in order of preserve or protect the Subcontractor's rights, if any, with respect to mechanic's liens or bond claims, then the Subcontractor may take that action prior to the expiration of the reasonable time for payment and such action will not be in violation of this Subcontract nor considered premature for purposes of preserving and protecting the Subcontractor's rights, ARTICLE 15 DISPUTE RESOLUTION 15.1 INITIAL DISPUTE RESOLUTION If a dispute arises out of or relates to this Subcontract, or the breach thereof, the parties may endeavor to settle the dispute first through direct discussions. If the dispute cannot be settled through direct discussions, the parties may 12 endeavor to settle the dispute by mediation before recourse to arbitration. Unless the parties agree otherwise, the mediation shall be conducted in accordance with the Construction Mediation Rules of the American Arbitration Association. Mediation will be commenced within the time limits for arbitration stipulated in the Subcontract Documents. The time limits for any subsequent arbitration will be extended for the duration of the mediation process plus fourteen (14) calendar days, or as otherwise provided in the Subcontract Documents, Issues to be mediated are subject to the exceptions in Paragraph 15.3 for arbitration, The location of the mediation shall be the same as the location for arbitration identified in Paragraph 15.4. 15.2 AGREEMENT TO ARBITRATE All claims, disputes, and other matters in question arising out of, or relating to, this Subcontract, or the breach thereof, except for claims which have been waived by the making or acceptance of final payment, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect unless the parties mutually agree otherwise. Notwithstanding other provisions in this Subcontract, or choice of law provisions to the contrary, this agreement to arbitrate shall be governed by the Federal Arbitration Act, 9 U,S,C. § 1 et seq" which shall not be superseded or supplemented by any other arbitration act, statute or regulation, 15,3. STAY OF PROCEEDINGS AND CONSOLIDATION In the event the Contractor and Subcontractor determine that all or a portion of any claim, dispute or other matter in question between them is the responsibility. in whole or in part of a person or entity who is under no obligation to arbitrate said claim, dispute or matter with Contractor and Subcontractor in the same proceeding, then the Contractor and Subcontractor may agree in writing to delay or stay any arbitration between them pending the determination, in a separate proceeding, of the responsibility and liability of said person or entity for the claim,' dispute or matter involved. The Subcontractor agrees that any arbitration instituted under this Article 15 may, at the Contractor's election, be consolidated with any other arbitration proceeding involving a common question of fact or law between the Contractor and any other subcontractor(s) performing work in connection with the Contract. In any dispute concerning the application of this paragraph 15,3, the question of arbitrability shall be decided by the appropriate court and not by arbitration. 15.4 NOTICE OF DEMAND Notice of the demand for arbitration shall be filed in writing with the other party to this Subcontract and with the American Arbitration Association. The demand for arbitration shall be made as required in the Subcontract Documents or within a reasonabie time after written notice of the claim, dispute or other matter in question has been given, but in no event shall it be made when institution of legal or Rev, 09/02 . equit¡3ble proceedings based on such claim, dispute or other matter in question would be bared by the applicabie statutes of limitation, The location of the arbitration proceedings shall be at the office of the American Arbitration Association nearest the Project site. unless the parties agree otherwise. 15.5 AWARD The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with the Federal Arbitration Act in any court having jurisdiction. 15.6 WORK CONTINUATION AND PAYMENT The Subcontractor shall carry on the Subcontract Work and maintain the Schedule of Work pending final resolution of a claim including arbitration, unless the Subcontract has been terminated or the Subcontract Work suspended as provided for in the Subcontract, or the parties otherwise agree in writing to a partial or total suspension of the Subcontract Work. If the Subcontractor is continuing to perform in accordance with the Subcontract, the Contractor shall continue to make payments as required by the Subcontract. 15.7 NO LIMITATION OF RIGHTS AND REMEDIES Nothing in this Article shall limit any rights or remedies not expressly waived by the Subcontractor which the Subcontractor may have under lien laws or surety bonds. 15.8 SAME ARBITRATORS To the extent not prohibited by their contracts with others, the ciaims and disputes of the Owner, Contractor, Subcontractor and others involved with the Project, concerning a common question of fact or law, shall be heard by the same arbitrator(s) in a single proceeding. ARTICLE 16 RECOURSE BY CONTRACTOR 16.1 FAILURE OF PERFORMANCE 16.1.1 NOTICE TO CURE If the Subcontractor refuses or fails to supply enough properly skilled workers, proper materials, or maintain the Schedule of Work, or it fails to make prompt payment to its workers, includinQ frinQe benefits. pavroll taxes, etc., subcontractors or suppliers, disregards laws, ordinances, rules, regulations, or orders of any public authority having jurisdiction, or otherwise is guilty of a material breach of a provision of this Subcontract, the Subcontractor may be deemed in default of this Subcontract. If the Subcontractor fails within ~ working day- after written notification to commence and continue satisfactory correction of such default, with diligence and promptness, then the Contractor, without prejudice to any other rights or remedies, shall have the right to any or all of the following remedies: 13 (a) supply such number of workers and quantity of materials, equipment or other facilities as the Contractor deems necessary for the satisfactory correction of such default, which the Subcontractor failed to complete or perform after the aforesaid notice, and charge the cost thereof to the Subcontractor, who shall be liable for the payment of same including reasonable overhead, profit and attorneys' fees; (b) contract with one or more additional contractors, to perform such part of the Subcontract Work as the Contractor shall determine will provide the most expeditious correction of the default and charge the cost thereof to the Subcontractor; (c) withhold payment of monies due the Subcontractor in accordance with Subparagraph 14.2,3 of this Subcontract Agreement; and (d) in the event of an emergency affecting the safety of persons or property; the Contractor may proceed to commence and continue satisfactory correction of such default, without first giving ~ working day- written notice to the Subcontractor, but shall give prompt written notice of such action to the Subcontractor. 16.1.2 TERMINATION BY CONTRACTOR If the Subcontractor fails to commence and satisfactorily continue correction of a default within ~ working day- after written notification issued under Subparagraph 16.1,1, then the Contractor may, in lieu of or in addition to the remedies set forth in Subparagraph 16.1.1, issue a second written notification to the Subcontractor and the Subcontractor's surety, if any. Such notice shall state that if the Subcontractor fails to commence and continue correction of the default within one (1) working day- of the second written notification, the Subcontract may be terminated and the Contractor may use any materials, implements, equipment, appliances, or tools furnished by, or belonging to the Subcontractor to complete the Subcontract Work. A written notice of termination shall be issued by the Contractor to the Subcontractor at the time the Subcontract is terminated. The Contractor also may furnish those materials, equipment, and/or employ such workers or subcontractors, as the Contractor deems necessary to maintain the orderly progress of the work. All costs incurred by the Contractor in performing the Subcontract Work, including reasonable' overhead, profit, and attorneys' fees, shall be deducted from any moneys due or to become due the Subcontractor under this Subcontract. The Subcontractor shall be liable for the payment of any amount by which such expense may exceed the unpaid balance of the Subcontract Price. If the unpaid balance of the Subcontract Price exceeds the expense of finishing the Subcontract Work, such excess shall be paid to the Subcontractor, Rev, 09/02 16,1.3 USE OF SUBCONTRACTOR'S EQUIPMENT If the' Cûntractor performs work under this Article, or 'subcontracts such work to be so performed, the Contractor and/or the persons to whom work has been subcontracted shall have the right to take and use any materials, implements, equipment, appliances, or tools furnished by, belonging, or delivered to the Subcontractor and located at the Project for the purpose of completing any remaining Subcontract Work, Immediately upon completion of the Subcontract Work, any remaining materials, implements, equipment, appliances, or tools not consumed or incorporated in performance of the Subcontract Work, and furnished by, belonging to, or delivered to the Project by or on behalf of the Subcontractor, shall be returned to the Subcontractor in substantially the same condition as when they were taken, normal wear and tear excepted. 16.2 BANKRUPTCY 16.2.1 TERMINATION ABSENT CURE If Subcontractor files a petition under the Bankruptcy Code, this Subcontract shall terminate if the Subcontractor or the Subcontractor's trustee rejects the Subcontract or, if there has been a default, the Subcontractor is unable to give adequate assurance that the Subcontractor will perform as required by this Subcontract or otherwise is unable to comply with the requirements for assuming this Subcontract under the applicable provisions of the Bankruptcy Code. i 6.2.2 iNTERiM REMEüiES if the Subcontractor is not performing in accordance with the Schedule of Work at the time a petition in bankruptcy is filed, or at any subsequent time, the Contractor, while awaiting the decision of the Subcontractor or its trustee to reject or to assume this Subcontract and provide adequate assurance of its ability to perform hereunder, may avail itself of such remedies under this Article as are reasonably necessary to maintain the Schedule of Work, The Contractor may offset against any sums due or to become due the Subcontractor under the Subcontract all costs incurred in pursuing any of the remedies provided hereunder, including, but not limited to, reasonable overhead, profit, and attorneys' fees. The Subcontractor shall be liable for the payment of any amount by which such expense may exceed the unpaid balance of the Subcontract Price, 16.3 STOPPAGE OF WORK Should the Owner order the Contractor in writing to stop the performance of the Contract or any portion which affects the Subcontract Work due to any act or omission of the Contractor, or any other person or entity for whose acts or omissions to the Contractor may be liable, then the Contractor shall so notify the Subcontract in writing and upon written notification the Subcontractor shall stop that portion of the Subcontract Work as ordered by the Contractor. 14 16.4 SUSPENSION CONVENIENCE BY OWNER FOR 16.4.1 Should the Owner order the Contractor in writing to suspend, delay, or interrupt the performance of the Contract or any part which affects the Subcontract Work for such period of time as may be determined to be appropriate for the convenience of the Owner, and not due to any act or omission of the Contractor, or any other person or entity for whose acts or omissions the Contractor may be liable, then the Contractor shall so notify the Subcontractor in writing and, upon written notification, the Subcontractor shall immediately suspend, delay, or interrupt that portion of the Subcontract Work as ordered by Contractor. 16.4.2 In the event of an Owner suspension, delay or interruption for convenience as described in Subparagraph 16.4,1, the Contractor's liability to the Subcontractor for any damages caused by said order, including any claims for adjustments in the Subcontract Price and/or Subcontract Time, shall be extinguished by the Contractor pursuing said damages and claims against the Owner, on the Subcontractor's behalf, and by awarding and paying over to the Subcontractor any additional time and/or money obtained from the Owner on the Subcontractor's behalf, if accepted by the Subcontractor. 16.4.3 If the Subcontractor's damages and claims resulting from an Owner suspension, delay, or interruption for convenience as described in Subparagraph 16.4.1, cannot be resolved through negotiation under the Contract, then the Contractor agrees to cooperate with the Subcontractor, at the Subcontractor's expense, in the prosecution of said damages and claims against the Owner through mediation, arbitration, and/or litigation, and to permit the Subcontractor to prosecute said damages and claims, in the name of the Contractor and for the use and benefit of the' Subcontractor. The Contractor's liability to the Subcontractor for any damages and claims caused by the Owner suspension, delay, or interruption for convenience shall be fully extinguished by the Contractor awarding and paying over to the Subcontractor any additional time and/or money obtained from the Owner on the Subcontractor's behalf through the conclusion of the mediation, arbitration, and/or litigation process, 16.5 TERMINATION BY OWNER 16.5.1 Should the Owner terminate its Contract with the Contractor, or any part which includes the Subcontract Work, the Contractor shall so notify the Subcontractor in writing within three (3) calendar days of the termination and, upon written notification, this Subcontract shall be terminated and the Subcontractor shall immediately stop the Subcontract Work, follow the Contractor's instructions regarding shutdown and termination procedures, and mitigate all costs. Rev. 09/02 . 16.5;2 In the event that the Owner terminates its Contract with the Contractor for the convenience of the Owner, and not due to any act or omission of the Contractor, then the Contractor's liability to the Subcontractor for any damages incurred or claims resulting from the Owner termination, shall be extinguished by the Contractor pursuing said damages and ciaims against the Owner on the Subcontractor's behaif, and by paying over to the Subcontractor any additional money obtained by the Contractor from the Owner on the Subcontractor's behalf, if accepted by the Subcontractor. 16,5.3 Deleted, 16.6 CONTINGENT ASSIGNMENT OF SUBCONTRACT The Contractor may assign this Subcontract to the Owner if required under the Contract. The assignment shall be effective only when the Owner: (a) has terminated the Contract for cause, and (b) has accepted the assignment by notifying the Subcontractor in writing, The contingent assignment is subject to the prior rights of a surety that may be obligated under the Contractor's bond, if any. Subcontractor hereby consents to such assignment and agrees to be bound to the Owner, as assignee, by the terms of this Subcontract. 16,7 SUSPENSION CONVENIENCE BY CONTRACTOR FOR 16.7.1 The Contractor may order the Subcontractor in writing to suspend, delay, or interrupt all or any part of the Subcontract Work for such period of time as may be determined to be appropriate for the convenience of the Contractor. The short/incidental stoppage of the Subcontract Work, shall not be deemed as suspension, delay, or interruption of work. 16.7.2 The Subcontractor shall notify the Contractor in writing within fourteen (14) calendar days after receipt of the Contractor's order of the effect of such order upon the Subcontract Work, The Subcontract Price and/or Subcontract Time shall be adjusted by Subcontract Change Order for any increase in the time and/or cost of performance of this subcontract caused by such suspension, delay, or interruption. 16.7.3 No claim under this Paragraph 16.7 shall be allowed for any costs incurred more than fourteen (14) calendar days prior to the Subcontractor's notice to the Contractor. 16.7.4 The Subcontract Price shall not be adjusted under this Paragraph 16.7 for any suspension, delay, or interruption to the extent that the performance of the Subcontract is, was, or would have been so suspended, delayed, or interrupted by the fault or neglect of the Subcontractor, by a cause for which the Subcontractor is responsible, or by a cause for which the Subcontractor is entitled only to a time extension under this Subcontract. 15 ARTICLE 17 TERMINATION BY SUBCONTRACTOR If the Subcontract work has been stopped for thirty (30) calendar days because the Subcontractor has not received progress payments as required under Article 14, or has been abandoned or suspended for an unreasonable period of time not due to the fault or neglect of the Subcontractor, then the Subcontractor may terminate this Subcontract upon giving the Contractor seven (7) calendar days written notice. Upon such termination, Subcontractor shall be entitled to recover from the Contractor payment for all Subcontract Work satisfactorily performed but not yet paid for, including reasonable overhead, profit, and damages. However, if the Owner has not paid the Contractor for the satisfactory performance of the Subcontract Work through no fault or neglect of the Contractor. and the Subcontractor terminates the Subcontract under this Article because it has not received corresponding progress payments as required under Article 14, then the Subcontractor shall be entitled to recover from the Contractor, within a reasonable period of time following termination, payment for all Subcontract Work satisfactorily performed but not yet paid for, including reasonable overhead and profit thereon. The Contractor's liability for any other damages claimed by the Subcontractor under such circumstances shall be extinguished by the Contractor pursuing said damages and claims against the Owner, on the Subcontractor's behalf, in the manner provided for in Subparagraphs 16,5.2 and 16.5.3 of this Subcontract Agreement. Rev, 09/02 -- Mississippi River Education and Conference Center Original Contract Amount RQ #058 CCD #032 RQ #063 CCD #034 COR #1 T & M forStruct Steel COR #2 Beam at 13 Line COR #7 Repair at Partition Door RQ #157 CCD #094 COR #4 (4197.00)& Partial #8 RQ#111(348.00) COR #9 RQ #166 West Exhibit Hall Hoisting 12/26/03 Concrete Topping Repair COR #3 RQ #162 Truss Repair appy 2/12 COR #18 Item 1 Special Coating Work SpecCtgRepairlnv11266-116/30/04 Subtotals COR #8 T&M work on burnt spine etc App 6/10 COR #10 T&M work approved 8/10 COR #11 T&MSept(1665.76,1851.14,2672.11) COR #14 Recoat Walls for layout 1 delay COR #15 Lift Expense COR #17 T & M Work Oct Nov COR #18 Item #2 Firecaulk ptg Subtotal Open Items COR #12 Overtime Work OR #16 Painted Reyeal OR #13 Special Coating Additional Work rr'" CREDITS $ 260,000.00 $ 464.88 $ 431.00 $ 11,821.65 $ 1,226,00 $ 2,280.70 $ 155.00 $ 4,545.00 $ 2,878.00 $ 4,748.66 $ 457.00 $ 1,411,00 $ 290,418.89 $ $ $ $ $ $ $ $ 991.08 1,150.83 6,189.03 2,452,20 10,620.39 2,411,10 350.60 24,165.23 $ 9,991.66 $ 4,650.00 $ 27,214.00 ~ DEBITS $ (227.00) $ (656.00) $ (883.00) Contract Total 289,535.89 $ 313,701.12 16£f Payments Bal Due $ 268,773.00 $ 20,762.89 c: ~~,~ .4' cf'~ 7J 3- 7 f