Claim Pospisil Painting re: GRC
AlTORNEYS AT LAW
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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
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. CUl.:é.SUBCONTRACT
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~"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